Fence line issue with neighbour

Hi guys,

I'm hoping someone here can help give me some advice before I seek legal.

I have fence line dispute with neighbour. They said the whole house and fence are over the boundary.
Which I later find out there is an easement for overhang.
To use the terminology from the Land Titles Office the easement benefits you as an owner and burdens neighbour as an owner.
Then they have comeback yes the easement is for the building not the fenceline.

The existing fenceline has been in place since they purchased the property in mid 80s.
And according to them replaced in the 90s in the same position as it was previously.

This is my PPOR and have been here for 9 years. I first heard about the fenceline issue 2 years when the neighbours brought it to my attention, didn't hear about anything before this.
The issue, is there has been multiple owners before me and this fenceline issue has been brought up with every owner, but each have sold up and moved away according to the neighbour's recount.

The previous, previous owner planted some pines on the land, which the neighbour is claiming is on their boundary. According to the neighbour the fence encroaching their land by 60cms and another 10cms over the boundary. These trees are now 10-15 metres tall.
They first insisted we filled out council forms to get permission, at our cost, to have these trees removed. Then promptly filled out the forms for us to submit to council. They took advantage, using scare tactic, bullying my elderly parents who have very poor english that they must sign - even offering to take them to council. Which terrified my elderly parents. I quickly told the neighbour to leave my parents out of it and if they had anything to discuss, to talk to me.

Now they have come back and want to rebuild the fence around these trees. ie. Build the fence so the trees are on their side (conveniently now they don't need to pay to remove the trees anymore).
I have told them no to this idea. As it will encroach my land and they will be my side of the boundary.
This was late last year we had this conversation.

They send an email after this conversation asking me to reconsider during christmas. I don't think I replied. As my answer still stands. And life got in the way..
Today they sent another email still pursuing the idea of building around the trees so they are on their side of the fence. And have given me 30 days to reply. Sent me a quote for the fence.

I first purchase this in the late 90s with the established garden. The garden was one of the deciding factor for this house compared to another. Now I am told I risk losing this? what are my rights?
What do I need to do?
Any advice /recommendation is appreciated.

thanks in advance.

 

NSW Legislation

Dividing Fences Act 1991 No 72
Current version for 1 January 2015 to date (accessed 16 March 2017 at 14:18)
Part 3 Section 12

12 Procedure when agreement not reached
(1) Adjoining owners may attend a Community Justice Centre in an attempt to reach an agreement concerning the carrying out of fencing work (including the contributions to be made in respect of the work).(2) If adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out, either owner may apply to the Local Court or the Civil and Administrative Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out.

 

If they want to keep the trees and the fenceline, they can rent it from you or they can pick those trees up and move them to their side of the boundary.

You will need to get a copy of the S88B instrument to determine what rights were granted in the easement and to what extent. You may be able to sell a slither of land to them but it will impact on your block.

 

Thanks @Propertunity
I am happy to agree to go halves in replacing the fence in its current position which they have sent me a quote for which i have 30 days to respond but they have sneakily in the fine print added.. moving the fenceline to correct spot.
But will not agree to have it moved.
Not sure if this sits under agreement or disagreement?

 

Thanks @Scott No Mates
I will check this S88B instrument out.
I have no interest in selling any slither of land.. Just want them to stop harassing me over this issue. Its been in the same position for 30+ years.
Neighbour bought it with fenceline in the same position as i did, only 20 years apart.

 

I'm pretty sure there was a case similar to this I read in a newspaper a while ago and it was deemed that the land in dispute was now owned by the person who was in your position as the fence had been there for so long (I think in their case it was around 30 years) that they were entitled to that piece of land.

I'll try to find the article. In the meantime, I would suggest (and I'm not a lawyer) that you make sure you have plenty of photos which clearly show that the trees are on your side of the fence, maybe make sure you can see your house in the same photo. That way if they sneakily rebuild the fence on you, you could at least take them to court and show how the fence was originally set.

Best of luck to you! I don't know why some people bother with this stuff after so many years

 

Has the fence line been surveyed?

That is the only way to correctly define the boundary.

Just because a fence was built in the wrong place does not mean a replacement fence cannot be placed correctly.
Marg

 

I can't find the article I was looking for, but I did find out about making adverse possession of the land. This is in VIC at least, I would hope other states are similar. So if the fence has been that way for at least 15 years, you can be legally entitled to claim the land that is on your side of the fence. Have a read of this.

Adverse Possession Claims - Hayton Kosky

 

Thanks for your response @Marg4000
Yes every house on the street, the fenceline slightly encroaches their neighbours - its always been like since it was subdivided 100 years back.
They are claiming land from my boundary but have not contacted their other neighbour to forgo their encroachment on their other side.

 

Thanks very much @luckyone for sharing the article
I am in Sydney.. not sure if adverse possession claim works the same here.

 

You both are assuming you know the boundary by the sounds of it.

Have it surveyed so you are informed.

 

Get a surveyed definition of title, it's about the 5k mark.not all surveyors can do.

 

Can you recommend someone in Sydney that does this?
thanks

 

Thanks. Yes it is stressful. Not fun.

I will try to message them.

 

Good suggestions above, especially the photos. Also gather together any other photos from when you first purchased and any others taken since then.

I would add to pull out your legal documents from when you first purchased this property. We would assume the easement and boundary issue was raised with you at the time. Your council and the land titles office would probably have some documentation about this if the entire street was incorrectly surveyed/built on 100 years ago.

I once had an issue with generalised harassment from a neighbour. One visit to a local solicitor and a one page letter to the neighbour from this solicitor quickly stopped all harassment.

 

If two boundaries are wrong, then one can be corrected without affecting the other.

If your fence encroaches on your neighbour's land, then they are entitled to align a new fence correctly. Just because it was incorrect when you bought is not a legal reason to perpetuate the error. A survey during the conveyancing process would have shown the correct boundaries.

What your neighbour does on the other side has nothing to do with it. Probably up to the disadvantaged neighbour to pursue.

In turn, you can correct your other fence if it encroaches on your land.
Marg

 

Laws are quite different between states. I am still trying to find the right property lawyer for my Sydney office and am not having much joy. Strangely enough it is hard to find property lawyers who invest/develop property themselves and not really keen on hiring a head honcho for their that doesn't walk the walk

 

@MissP

before you get carried away with 'adverse possession' 'plans of redefinition' 'section 88b instruments' go and have a talk to your local Registered Land Surveyor. After a brief talk he can probably set you in the right direction.

There may not be any boundary issues, it's probably just a case of the fence in the wrong position. (as stated) Unless Boundaries are marked, fences are rarely in the exact position. Bob the fencing contractor just puts them up as close to where practical or land owners put them where they want when no-one's looking.

Your adjoining land owner has the right to occupy his land, that is to have the fence correctly placed on the boundary, however if the trees are in the way of constructing the fence correctly then some commonsense may apply. If an agreement cant be reached refer to @Propertunity post.

i would imagine your surveyor may advise you to have the boundary surveyed to locate all significant structures including buildings, gutters, fences and trees. drawn on a sketch and report. As well as maybe having the boundary marked so a Fencer can construct the new fence on the boundary.

regards,
Land Surveyor

 

Or so you find out nothing is required and they were just having a go

I have seen people move fences for own benefit. Usually before new owner takes possession though.