Is my friend up for any cost to move a fence?

Discussion in 'Legal Issues' started by wylie, 14th Jul, 2023.

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  1. wylie

    wylie Moderator Staff Member

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    A friend has found the fence built by the neighbours who built the pool is 20cm short of where it should be. My friend has no interest in the 20cm (neither block can be subdivided).

    This was discovered when my friend had the block surveyed as part of drawing up plans for a renovation/addition.

    The fence is in very good condition, encloses one side of the neighbour's pool, built to boundary (well... 20cm inside the actual boundary), built by the previous owners when they put in their pool.

    My friend has BCC approval to build the extension, and part of that is a pergola outside the bedrooms being added (ground level) for security and privacy from next door's pool and outdoor living area.

    I've suggested he build this pergola just inside the survey line, so that if the neighbour wishes to move the fence in the future it will not foul with the pergola.

    Question... If the neighbour with the pool wants to move the fence to its correct alignment, does my friend have to pay for any of it? It is a perfectly sound fence, in great condition.
     
    Last edited: 14th Jul, 2023
  2. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Have a look at the dividing fences act of the relevant state. If there is an existing fence that is suitable then probably no requirement to pay unless one wants to move it and the other doesn't
     
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  3. jaydee

    jaydee Well-Known Member

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    I'm confused. @wylie friend's fence is inside her property by 20cm and is perfectly sound.

    Why would the neighbour want to move the fence and incur a cost (or pay all) as it currently is to their advantage?

    The biggest issue I would see if it has been there for a substantial time "adverse possession" might be raised at sometime in the future especially if building works are commenced without sorting it out.
     
  4. wylie

    wylie Moderator Staff Member

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    Apologies... I got the wording wrong.

    I've changed the first post to rectify.

    The fence gives my friend 20cm extra and the question is whether her neighbours (bought the house with the pool and fence where it currently sits), may want to get back their 20cm.

    If so, does my friend have any obligation to pay half the cost to move the fence into the correct alignment?

    And thanks @Terry_w for the tip. I'll pass that on.
     
    Last edited: 14th Jul, 2023
  5. wylie

    wylie Moderator Staff Member

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    I've changed the original post as I mucked it up.

    The fence is sitting 20cm into the neighbour's land on top of the swimming pool coping (built up about 1 metre above ground level). My friend doesn't want to claim adverse possession.

    He just doesn't really want to pay for half a fence when the one that is there is in great condition. Without the surveyor required for their renovation, neither party was aware the fence was not sitting on the boundary.

    @Terry_w are you saying that if the neighbour with the pool wants to reposition the fence and take back his 20cm now, and that means ripping out a perfectly good fence, my friend has to contribute towards that new fence?

    Neither party had anything to do with the building of the fence, as neither owned the properties when the fence was built.
     
  6. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    no
     
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  7. Marg4000

    Marg4000 Well-Known Member

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    Very doubtful that the person benefitting from the slight misalignment would ever request to move the fence.

    However, your idea to limit any building to the correct boundary is a good idea.

    Only possible issue I can foresee is if/when your friend decides to sell.
     
  8. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    Probably will find the other fence is 20cm out too.
     
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  9. bmc

    bmc Well-Known Member

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    always the best option otherwise you have an encroachment and may be forced to remove it or pay for an easement for the use of the the adjoining land
    ie: "easement for overhanging structure"

    is that even possible ?,
    i'm not familiar with QLD survey law but in NSW you cannot claim a slither of Torrens Tittle land

    what has the licensed Surveyor advised

    good advice
    Your responsibility as a fence owner
     
  10. wylie

    wylie Moderator Staff Member

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    I'm thinking the whole street may well be out of alignment. I live in the street, know all parties involved, (including the previous owners of both properties) and yes... our fence might be out of alignment as well.
     
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  11. admiral_mason

    admiral_mason Member

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    I found this post through Google searching and I noticed in other posts that you also live in Holland Park. I am in the Victor / Harold / Burlington / Arnold cluster and I've been researching old maps and I think all our fences are off.

    Did you ever look more into this?
     
  12. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    I call ti the China maps effect. Google images dont align with actual roads and structures ANYWHERE in China. Its a requirement of the Chinese Govt. It makes actual map use a little annoying in China. You end up around 50metres north and east from where you want to be. Every single time. But if you use "map view" it seems OK but you are always 50m SW of where you wanted. . Satelite confuses as BOTH are wrong....Those chinese have such sophisticated forms of national security. Do they think people will find Tianammen Square is missing and go home ?

    I dont think its too hard to work out all geographical images are approx. AND also note the pin. Its also nowhere near the actual place or roads.

    upload_2024-4-18_15-46-6.png
     
  13. wylie

    wylie Moderator Staff Member

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    I didn’t look further. It seems to
    I didn't realise I'd not updated this thread. My friend paid for a survey, and whilst the plans showed the fence to be around 20cm out, when they surveyed the block prior to starting the build, the fence is actually in the correct place.

    I don't know why the plans were drawn up showing a 20cm discrepancy. She lost a lot of sleep over this and the neighbours were being very difficult.

    Once she sent the survey to them, they went quiet. She was building partly on the boundary, so it was necessary to get the full survey before starting.

    But I do believe many of these older suburbs have mis-aligned fences, and unless one owner points it out, nobody probably notices (unless they need to build to boundary, and have a survey done).

    I recall a case where this happened, and all the fences down the street were out. I don't recall what happened.