The next door house was just sold to a new owner. This owner has done subdivision and is going to construct two new units. The existing construction on site has been demolished. Today, he called me and told the fence between my land and his was incorrect located and he wants to fence move a bit toward to my land 3cm. He told me the fence moved to his side because of the earth move and he has the surveyor' plan and the Council's agreement. I do not know what he means Council's agreement. Maybe, it is a subdivision plan. This fence has been erected by previous owner and myself 3 years a go when I built my house; and we all were happy. What the best can I do so that I can be sure the fence is erected correctly
I believe they survey for subdivision should drawn based on the existing land boundary. Why neighbour wants to my the fence toward my side.
Are we really talking only 3cm? Seems too small an amount to bother with ........if 30cm then maybe......
If the fence isn't on the true boundary then it is an encroachment. This doesn't automatically mean it has to be moved and it's unlikely a Court would order a fence to be moved such a small amount.
I am sorry. Just talk to neighbour again. he said that encroachment is 36cm. Unbelivable. the fence has been there for more than 10 years, since I bought the house. The neighbour showed me a survey plan without survey license number or contact number. I asked him the surveyor contact number. Hopefully, he can give the contact number by next week. Also, surveyor did not put any pegs on the correct fence boundary. How do I know where the correct boundary for a new fence? I asked neighbour to have surveyor put the pegs but he denied it as he did not want to pay more cost for surveyor. Should I call my own surveyor?
I probably wouldn't do anything until forced. But if you want to be co-operative and don't mind losing space, I would ask them to agree to pay in advance for the costs for you to engage a surveyor of your choice.
He may have a Surveyors report (Identification Survey) or it could be a building setout Sketch. Sometimes we dont mark the boundary corners when setting out a new building position. However it is usually issued on a company letterhead or plan titleblock. It should contain the registered surveyors name, signature and sometimes his registration number. (NSW) If the Surveyor has prepared a Subdivision plan it will need to be endorsed by Council before it can be lodged at Land titles and registered. Only a Registered (licensed) Surveyor is legally permitted to mark or report on Property Boundaries. if he wants to move the fence, i would ask him to have his surveyor mark the boundaries and give you a copy of the report or plan, all at his expense. regards, Land Surveyor.
Does not mean anything as councils stay out of fence disputes so neighbours are trying to bluff you. You can bluff with "adverse possession" as well. Most fence contractors will need other sides to sign off before commencing work and you can clearly let your neighbour know that you have had a fence survey done and have marked the existing post locations and if they even try to remove or modify it you are going take it down and put a fence back on the existing fence line. Not a good situation to be in especially if you intend to live there long term
The general rules are below, speak to a lawyer for site specific advice. After 15 years of continueous, exclusive and uninterrupted use of someone elses land (cant be crown/council/authorities land), then the title holder of that land loses the right to that occupied land. Adverse possession becomes available for the occupier to claim title to the occupied land, however, they dont have to, they can just leave the fence there and continue to use that land. http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/loaa1958226/s8.html If you can prove that the current fence of 10 years was placed in the same position as a previous fence, and together are over 15 years, then you will have possessory rights to that occupied land. In order to enforce those rights you should consult a lawyer, preferably someone that specialises in this area. They can give you further advice on what response should be provided to the developer. You also may have the ability to claim title to the land through adverse possession. This is a lengthy and expensive process (1 year and 10 -15k). The surveyor will place pegs/marks/offset marks representing the title boundary, but that doesn't account for any possessory rights you may have accrued over the occupied land. The council approval received by the developer was most likely for the construction of the units/subdivision, not for the removal of an encroaching fence so they can build/re-fence on the boundary. You may need to pay some fees to a lawyer, and possibly need to pay for your own title re-establishment survey by a licensed land surveyor. Are you willing to spend money on enforcing your rights?
"The next door house was just sold to a new owner. This owner has done subdivision and is going to construct two new units. The existing construction on site has been demolished. Today, he called me and told the fence between my land and his was incorrect located and he wants to fence move a bit toward to my land 3cm. He told me the fence moved to his side because of the earth move " From this statement, it looks like it's the neighbour's problem. He demolished, he did earthworks etc. He is possibly trying to bluff you into paying for his retaining works and drainage too. Take plenty of photos. Perhaps he is politely letting you know that the land has slipped a bit and he is going to rectify it and there is nothing for you to worry about.
I asked the neighbour's surveyor come back and peg the boundary corners. I would return their land if I occupy it. Cheers
My mate had this issue a few years back, the neighbour showed him a survey and it showed the Right hand boundary fence that they shared was 50cm to far into the neighbours property and they asked for it to be moved 50cm into my mate property. This is even though that neighbour had 50cm of his right hand neighbours land according to his survey. The same surveyor (At the Neighbors Cost) then did a survey on my mates block and it showed that the left hand boundary fence of my mates block was 40cm into his land, meaning that left hand neighbour had some of my mates land , so after some more research the surveyor worked out that the whole street / block each had some of each other land and the original subdivision surveys were incorrect, pls it had been like that for 25yrs, so the original neighbour could not force the fence to be repositioned. The other thing was each lot still had the correct Sqm listed, so it wasn't like they actually lost any Sqm
