Please help w boundary issue

Discussion in 'Legal Issues' started by kristaje, 1st Aug, 2022.

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  1. kristaje

    kristaje Active Member

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    We're recently contacted by a neighbour living next to our IP in NSW re. boundary issue. They recently did a survey on their land and wanted to move the fence 30cm into our side. We subsequently hired our own surveyor and confirmed that the actual boundary is as they claim and on the other side of our land 30cm into the other side's neighbour side (so all the fences need to be moved 30cm to the left).

    From the surveyor report that the neighbour gave us, it showed that similar issue happened on his other side. The side wall of his garage is actually sitting on his other side neighbour's land. From google map, we could saw that all houses in the whole block potentially have this same issue.

    Moving the fence will mean that we'd need to do few things: knock down a brick bbq, cut down a larger tree, as well as move water/gas meter and related piping, which may mean disruption of gas/water supply to tenants.

    Now this neighbour keeps pressuring us about moving the fence, but from what we saw so far, he only planned to move one side of his fence and not the other, and possibly ended-up with more land. He kept saying that he needed the fence between us to be moved soon, to coincide with the other boundary works and even gave us a date of next week. But from what we saw so far, there had not been any work done to move to his garage on the other side, so not sure about the significant of the next week date?

    We're okay everybody in the row adjusting our fences, if that's what it need to. We're ok too for everyone keeping the current fences/boundaries. What we're uncomfortable with is moving this one fence only, which will result in us having less land and the the neighbour having more land.

    I called the council (Cumberland) and they said that it's not a council related issue. They gave me a community service body number, which maybe able to help w the dispute.

    This is the first time for us, and I'm not sure what to do with it. Should I try to get all neighbours discuss it w the help of the Community Service body? If all neighbours can agree to keep current fence, should we each submit adverse possession claims (with the agreement of the other neighbour) and settle the issue this way, saving us all from moving work/issue/cost? We've owned the IP 12y+ and same with both side neighbours. I don't know any of the neighbours, except the one contacted me, but I believed some of the properties are IPs. The one on the other side of that neighbour is certainly an IP. Any help or advise is appreciated. Thank you.
     
    Last edited: 1st Aug, 2022
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  2. kristaje

    kristaje Active Member

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    Additional info: just confirmed that the neighbour only plan to move the one fence (bordering to our property), in spite him telling us that they planned to rectify both boundaries next week. I spoke to the managing agent of the other property, who managed the place for an interstate landlord, and they confirmed that they had not been contacted re. boundary work.

    Any advise on how I should approach the matter? Thanks.
     
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  3. datto

    datto Well-Known Member

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    Sounds like the neighbour is a bs artist and has been caught out through your due diligence. Good work.

    I suppose you could mediate to get everyone’s boundary correct. But to me losing 30 cm is nothing . I’d tell the neighbour to do it all himself as he just wants a larger block.

    I’d tell him to knock and rebuild the fence himself, as well as cut the tree and the bbq.
     
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  4. kristaje

    kristaje Active Member

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    Thanks for your reply, Datto.

    The neighbour actually wanted to pay for the fence move himself, just asked me to make sure that all is clear on our land (ie. tree, meters, bbq). I'll definitely have a chat w him re. cost division if and when we come to the actual move. The 30cm seems not much, but it'll total around 11sqm on a 443sqm land in a growing area (Parramatta), so not insignificant in value for us.

    I'm a bit confused as he seems to be in such a hurry to move the fence, so have been raking my brains on what possibly cause this and also what triggered the sudden intent. I mean the fence has been in the current place forever. So far I can only think of a couple of possibilities on why he suddenly wants to do this now:
    • we just passed the 12y mark owning the property on March this year, maybe he afraid we'd claim adverse possession?
    • there maybe a land size limit to build certain kind of development (eg. apartment block / townhouse) and his current land is just under this limit? I think I need to look into this to make sure we're not disqualifying ourselves for certain kind of opportunity by this fence move.
    Has anyone had some experience w the Community Mediation? Are they helpful?


     
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  5. Joynz

    Joynz Well-Known Member

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    Get some legal advice. If it’s related to adverse possession make sure whoever you consult is experienced in this area.

    For 11 sq metres I’d be looking at my options!
     
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  6. datto

    datto Well-Known Member

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    Maybe the neighbour is thinking of selling up and wants the block to look as big as possible.
     
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  7. bmc

    bmc Well-Known Member

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    assuming your lot is around the Parramatta area, I would hasten to guess that your property is under Torrens Title,
    If so, in NSW you cannot claim part of a lot. it must be the whole parcel. which obviously you are not occupying.

    I'm guessing you simply have an encroachment of a fence and minor structures.
    Did your survey include all boundaries or just the common one with your neighbour ? how do the fences sit on the the other boundaries.?
    300mm is not substantial and it is not unusual to find fences out by this amount. Even more can be found in rural areas.

    who knows the history of the past fences.
    sometimes owners do not get a Surveyor to mark a boundary to re-fence and the fencing contractor (or owner) may fence the easiest path, to miss a tree or a rockery etc etc. or dig a new post hole next to an old one.

    I assume your Surveyors report will indicate that your lot dimensions exist, (no shortage or excess found) which he would prove by undertaking a physical survey and researching many documents and plans available to him at the NSW Land Registry (LRS).
    if your lot dimensions are unchanged from the original deposited plan, then you haven't lost any land. your fences are just not in the correct position.
     
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  8. Stoffo

    Stoffo Well-Known Member

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    I'm sure many of your neighbors would rather the fences and boundary stay where they are also !

    Essentially there is one winner and one loser here, at one corner someone is 30cm short and at the other corner they benefit by 30cm.

    Fail to see how it isn't a council issue, they approved the subdivision, oversaw the subdivision, titled the subdivision, approved the building of properties even, surely council procedures should have picked up on this and if not they/council should have to rectify.

    Tell the neighbor in writting to formally get stuffed !
    Also inform the neighbor that any attempt to move the fence/BBQ/tree will result in a trespass charge and criminal damage actions.....

    Hopefully he goes away !

    Also, form a WhatsApp chat group for all the affected neighbors, having everyone informed will help
     
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  9. kristaje

    kristaje Active Member

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    Good point, thank you Joynz. Just wonder if anyone has any pointer on a property lawyer who could help with this?


    That's a possibility. The survey doc they sent me was addressed to a company name. I checked and it's a development company. Maybe they're selling to this company?


    Thanks for the info re. Torrens Title. I'll check w the solicitor who helped us w conveyancing before.

    Both surveys (neighbours and ours) included all boundaries. Back boundaries are ok-ish for us, only a corner where fence missed by 10cm-ish. Neighbour garage encroached their back neighbour by 45cm-ish and their next door on the other side by 30cm. It's the side by side boundaries where fences differ from the actual boundaries, missed by 30cm from property to property (other neigbour, neighbour, ours, our other neighbour).

    It's definitely our preference to keep fences as they are, if possible. Aside from the hassle and cost involved, we should have same size of land if fences are both moved. Neighbour will probably loose some land at the back (as their garage encroached their side and back properties) and will have to dismantle garage, so I'm not sure why they initiate this - except if they just want to change one boundary (with us) to get bigger land). Our other neighbour will loose some land, as he's at the end of the block.

    I was baffled by this too....

    So far he's been civil, although v pushy about timeline, so I'd want to keep thing on a peaceful note if possible.

    I'm a bit tempted to disclose that I know he only tried to move the fence on our side, and not the other two (where he will loose land). Give him 2 options: (1) let everything as is, or (2) we notify the 2 other neighbours and we move all fences together. But no to moving one fence only. Will be interested in any thoughts on this. If I should discuss this directly w him, or better via more formal channel via lawyer/community body?
     
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  10. bmc

    bmc Well-Known Member

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    for the record, google maps is indicative only.
    its merely a rough overlayed depiction and only good for light entertainment.

    A property boundary defines the extent of legal ownership of a parcel of land and can only be determined by a Registered Surveyor.
    a position of a fence doesn’t alter the actual boundary location or the legal rights regarding the ownership to land.

    until he gets a court order of course
     
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  11. kristaje

    kristaje Active Member

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    Noted, thank you.

    Both neighbour and us had engaged our own surveyors (for our respective properties) so we have good understanding on the boundaries. But none of the other neighbours are aware about this issue yet, in my understanding.


    Very true. I'd like to avoid things escalated to that if possible, especially because sudden move may affect the water & gas piping and supplies for tenants.
     
  12. PipG

    PipG Member

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    Have you got a quote to amend the subdivision plan rather than physically moving fences and structures? Perhaps if all the affected neighbours chipped in it might not cost too much.
     
  13. kristaje

    kristaje Active Member

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    No I haven't. Have never thought about that actually, so thanks for bringing this up. Who will I need to approach to explore this, say we can get everyone to agree? Planner, council?
     
  14. bmc

    bmc Well-Known Member

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    Town Planner
    Development Application
    Subdivision Certificate
    signatures and consent from all owners, interested parties, mortgagees, mortgagor's
    Surveyor
    it would run into the thousands

    you have 2 licensed Surveyors that have agreed the fence encroaches by 30cm.
    you are over thinking it
     
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  15. PipG

    PipG Member

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    Yes and so could moving fences and structures for all the properties affected by this issue.
     
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  16. bmc

    bmc Well-Known Member

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    @kristaje doesnt have any issues with any other properties. only the adjoining lot, of which they have had 2 independent surveys that show the common fence stands 30cm out of position.
    with a tree trimmed and a bbq that might need to moved.
    move the fence onto the boundary - problem solved
     
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  17. Stoffo

    Stoffo Well-Known Member

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    Couldn't this be presented to council as a quick fix for their original stuff up ?
    I mean the fact that things like water meters being outside your actual boundary is a stuff up, as all of these things would have been based on a surveyors marking that the council signed off on (wouldn't they) ?
     
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  18. bmc

    bmc Well-Known Member

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    @Stoffo some councils will ask for a Surveyors certificate to confirm all services are contained within their respective lots. sometimes just the contractors sign off (see where it can wrong)

    however fencing is usually not a condition of a DA, and, assuming its an old plan in an established area, the fences could have been replaced multiple times. OP says they have owned it for 12 years. if the first neighbour built his fence (assuming no pegs found) wrong from the start then everyone copies, they're all out.

    but to draw a long bow, If there is an error with the original surveyors Deposited Plan, then the OP surveyor should have found it and should notify LRS and request an investigation.

    However there is no mention of this and both have agreed on the boundary position.
    we can only go off the limited info and assume the surveyors have it right.

    @kristaje did your surveyor show or mention any other encroachments ie: BBQ , meters etc. You should also have a written report with the sketch plan.
    you need a thorough report on all structures along that boundary to determine what needs to be moved (if at all)
     
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  19. Scott No Mates

    Scott No Mates Well-Known Member

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    LTO does titling not council, council has only approved the subdivision in accordance with its LEP, fences aren't necessarily installed at the time of subdivision but more commonly after sale of properties and commencement of construction. Developers are loathe to install fences as it does not add to their bottom line but increases the cost of the lots.
     
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  20. kristaje

    kristaje Active Member

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    Thanks so much everyone, for your inputs. Looks like I need to sit and think it a bit more, and talk to the neighbours and council to see if we can come into some solution on this. Will let you know how I go.


    My surveyor report (one pager) didn't mention the bbq, tree nor meter. They're not shown in the sketch either. Just show the boundary and fence lines. Not sure if this is because they're not considered structures?

    Neighbour's surveyor report (one pager) mentioned encroachments at the back but not the one on the sides. Just the boundary and fence lines. Sketch showing 2 awning posts (part front of garage) and a brick pole crossing the current fence on the side.

    "Boundary offset

    dimensions to some features have been shown in the attached sketch. Survey has revealed a shortage in deed dimension as to the depth of the subject land.

    We find that the dwelling stands wholly within the boundaries of the subject land. The garage and sheds encroach over the rear boundary by up to 0.18m and fencing encroaches upon neighbouring land by to 0.45m as shown in the attached sketch. There are other fencing irregularities shown on the attached sketch."