ENCROACHMENT PRIOR TO SETTLEMENT: NSW

I am in the process of negotiation on a property purchase in NSW. I have discovered that on one side of the boundary (Northern) that the neighbours have built their house very close to or over the boundary (this probably happened 60yrs ago).

Their is also a pool in that neighbours backyard that is smack bang on my boundary. My current fence line is about 2m in from my boundary.

On the Southern boundary, their is a school with a fence that encroaches about 1m onto our property. Would be easy enough to just move the fence as their are no building close to it.

So in total, there is approx 90sqm of land missing from this property I am trying to buy!

MY ISSUE
I want to develop this land, and an extra 90sqm makes a big difference in the scheme of things.

1. Can I take this land back or get compensation prior to settlement?

2. Is the law on my side or could this result in a messy legal battle (which I want to avoid)?

3. If I develop, can I get some concessions regarding setbacks i.e. with reference to the boundary rather than the current fence line?

Any advice on my options would he appreciated

Chris

 

Have you had a survey done?

 

Have you sought legal advice?

Adverse possession.

 

Messy Indeed. Is this a must have development? I would read up on NSW fencing laws, boundaries and adverse possession laws. Perhaps sellers have not developed for these reasons - and probably wouldn't disclose either.

 

Thanks for your reply.

Haven't had a survey done, but my daughter is an architect and we got the info of the nsw state gov website, which shows the boundaries lines. I believe they are based on surveys. Crossed checked the system with other properties I own and it appears to be accurate. Of course as you suggest, an official survey would settle it. Wanted to know what I was potentially up for if things were askew.

 

Agreed.

 

Having a survey does not necessarily settle it, unfortunately. There would be no adverse possession claims if surveys were the bible. You may have a reasonable neighbour who agrees for you to move the fence on to the boundary line OR your neighbour may say the fence has been there for 30 years, it's my land.

 

The fence probably has been there for 30 yrs.....and their pool and house could not have been built (on the boundary) based on today's bca /dcp. So someone has approved their house (70yrs ago) and their pool (more recently) which makes me think that it might be hard to make a claim for the land they are using.

I don't know much about this legal area, but I would presume that it would be hard to argue based alone on the data from sixmaps survey that the land belongs to the property I am trying to buy if it has been like that for 30yrs?

The interesting thing is that the survey on nsw sixmaps site says the land is 630sqm (based on survey boundaries), but when you measure it based on fence lines it is really only 520sqm. Realestate is selling it as 630sqm not 520sqm - so something not right here

 

That's the obvious next step. I read that a person must have exerted dominion over the land for 12 yrs before they can apply for adverse possession. Based on sales records, I see that the owner of next door neighbour bought their property in 2011 - so only 7 yrs.

 

@bmc or @lixas4 may be able to provide some pointers on adverse possession, however merely use and fencing aren't the only criteria. Who has been paying the rates and performing maintenance on the land?

A boundary identification survey will assist in knowing where the fences are located relative to the boundaries.

 

Good point. Maitenance on land has definitely been the neighbours.

That would be an interesting thing to investigate. If owner has been paying rates on 634sqm value and 634sqm is stated in council records. I might call council and ask them what they have on record. They may have an up to date survey on hand. Have also put a call into the agent to ask him what he knows.

 

You are drawing simplistic conclusions on what may be a complex legal situation.
Proceed with caution, and very good legal advice.
Even with right on your side, you may be in for a very long and costly battle if neighbours dig their heels in.
Marg

 

Yes i am definitely out if my depth. Just trying to think out loud.

 

Don't rely on the boundaries shown on Government mapping. They can be off by a large margin. Look at some streets and every single house is built half into the neighbouring lot. Get an identification survey if you want to know the actual boundaries.

 

That's good to know. Appreciate your advice

 

@JDM is spot on, the map bases cannot be relied upon. Only a survey by a registered land surveyor can tell you were your title boundaries are, and if there are any encroaching buildings/fences.

 

Our tenants were threatened, we were threatened.

 

100% correct. never use the GIS cadastre (boundary) overlay to deteremine a property boundary. it is only meant to be indicative.

Get a survey done to find out where structures stand on the lot. There may not be any problem at all.