Hi guys, Just wanting to get some advice on a property boundary and fence alignment issue (located in Brisbane). Our neighbour is subdividing their property and I noticed that they have placed a peg (says lot 1) infront of our fence which faces the road. I've attached an image of a rough sketch of the situation. We are A and the neighbour is B. The existing dividing fence has been in place for more than 20 years and the red circle is where the peg has been placed. Assuming if the location of the peg is correct I'm guessing what the property boundary may be (depicted as red dotted line). Only assuming, as I would believe they would have had to get a survey done, etc. We have a number of trees that would be affected if the fence was re-aligned (possibly a garage too). Do we have a leg to stand on in regards to not wanting the fence re-aligned? I've taken plenty of pictures of the fence where it currently stands. If it does have to be re-aligned, who has to wear the cost of the dividing fence being re-built? And the road facing fence (have a colourbond road facing fence and a panel would be split in half)? We haven't been approached by the neighbour but want to be prepared once they do.
Don’t assume!!! Is it a survey peg or a normal peg? Is there just one peg or are there pegs all the way down the block?
If the current fence is sufficient (in good condition) then you don’t have to pay. I think you need to reword the poll. You really have two questions 1. Do I have to share the cost of a realigned fence? And 2. Can the neighbour realign the fence? Don’t delay contacting council, the neighbour, a lawyer etc - as it will be harder to object if they pour a slab! I would start by gently mentioning the sign to the neighbour and that the sign seems to be in an odd location. Because it could have been moved by a passerby as a joke!
Was the peg placed by a surveyor? It could be an offset peg (does it have the word offset written on it?)
Often pegs are placed out of the way so that they aren't damaged during construction, this offset is usually 1m. There are probably other markings which would indicate this is the case eg. small triangle on the kerb. If the neighbour has submitted a Development Application, then there may/could/should/would be conditions attached relating to the requirement for fencing (probably at the developer's cost). What this fails to clarify is that under Torrens Title, all adverse possession claims must be for the entire parcel of land not a portion or slither. The cases highlighted show an occupancy of an unclaimed/vacant house not part of the yard. If an AP claim was lodged on OST, then it would be possible to claim a portion of the land so occupied.
There has to be extended use without permission to claim adverse posession of land (either of a sliver, a portion (or the whole thing including house - as in the notorious Sydney case recently). Since you have clearly been using the land (as it has been fenced for 20 years) then - if the boundaries are currently wrong - you may have a good chance at getting adverse possession. But you would need to go through a legal process. But it might not be needed - by the sounds of things they may be just guidance pegs not boundary pegs...
Why not ask your neighbour? If the fence is in the wrong place, I would assume they would pay to build a new one on the correct alignment. Do you want to try to claim adverse possession? Or do you want to protect the trees on the boundary? How much land is involved (one metre, six inches?) We had a situation in south side Brisbane where a truncated section of fence had been there probably for 50 years and my parents either didn't notice or didn't change it to create the full corner as per the title. We inherited that house and one day I realised we should have a corner, not a truncation. We had the block surveyed, told the neighbour the surveyor would remove a couple of palings and put in a peg. Their house was on the market, so losing a few square metres wasn't going to bother them. But it blew up big time. I was threatened with adverse possession. Firstly they asked if I'd leave the fence where it is and create an easement of some type that I could re-fence any time I wished to. When I said no to this, I copped abusive texts and calls. I ran it past a lawyer from this site who said claiming AP in Brisbane is costly and defending it is much easier and cheaper. But this couple were separating and selling anyway. It caused me many sleepless nights and a huge amount of stress. We held off our fencer for two weeks to allow them time to do whatever they wished to do, hire a lawyer, whatever. Two weeks later, we fenced it as per the plan and they sold to a new owner who would never have know the fence wasn't always on the boundary. Perhaps go to the free legal service offered in Brisbane. We used them for another fence issue we had and they were very helpful. brisbane free legal service
Do nothing and enjoy your life . If they wish to move the fence to that line - there will be processes they will need to go through. Read up on the fencing rules and processes in Brisbane. In terms of their subdivision, they may need these marked to satisfy council requirements and get approval to make 2 lots. The council may have no interest in whether the fence is correctly positioned. The neighbours may also have no issue where the fence is as long as on paper the correct boundary is noted.
+1 OST = old system title Note: the laws are different in each state. beware of the bush lawyers. "It's the vibe of it. its the constitution. its mabo. it's justice. it's law. it's the vibe and ah, no, that's it, it's the vibe. I rest my case." rg-guidelines.nswlrs Possessory Title check your QLD law, but i think it may be similar to NSW. it could be a setout peg (dumpy 2" x 2") for the new building or setout of services etc., but you said the stake was marked as "Lot 1" which suggests to me that it is a boundary peg maybe for the new subdivision. (in NSW 4" x 2" painted white) have you seen a copy of the survey peg-out sketch or looked on DA Tracker ? Sometimes the subsequent plans and compliance documents are lodged with council throughout the development process. as for the fence realignment, i have mostly seen the developer pay (not that they are obliged) but I would check with council and see if they offer any advice.
Looks like a survey peg to me. It has notations O/S 0.3m and points into our property. As the peg is outside the front facing fence, maybe it means overshoot 30cm? Which would be about right for the start of the boundary from the road to the lot. I'm not sure if it was done by a surveyor as I only saw it at night after work. I called up council today and they just told me to talk to QLD government as our sitation pertains to their act and not local council's. QLD government said it would be a civil dispute so have to go to QCAT if there are any disputes. Not very helpful from either. Tried calling free legal and they said that if the neighbours haven't said anything they can't help me. The neighbours already have their development approval, so they are in the process of doing the op works. I had a look on the survey plan of the application and there is no marking for the fence (so a bit hard to determine exactly). But based on the landmarks (garage and land contours) and the border represented on their plan, it looks like the true border is about 30~40cm in towards our side of the fence (assuming the survey is correct). Had a look in regards to adverse possession but it's hard to research specifics online. Correct me if I'm wrong but I gathered that in QLD we can't apply for a portion of a lot for adverse possession and only a whole lot. So moot for our situation. I can't see how a surveyor would get it wrong and get the application passed through council, so it must be correct? I guess I should just wait and see what the developer wants to do with the boundary.
Yes O/S stands for offset, then the arrow points in the direction of where the title boundary is, and the number shown is the offset distance. @Jtin - for clarity, now that you know where the title boundary is, can you redraw your image and show the distance between the title boundary and the existing fence?
You could always obtain a survey of your own lot. Maybe the neighbor on the other side owe's you 30-40mm
That's an offset peg if it has O/S on it. So it's saying that the true boundary is .3 (30cm) to the other side of the peg towards your neighbours.
I hope your garage is not encroaching. do you have any old survey reports from when you purchased ? they might show the garage position. The only way to be be certain of any marks placed is to get a copy of the Surveyors sketch. it's not uncommon to find fences out of position (here's one i prepared earlier). assuming your lot is Torrens Title and based on a few factors we can usually reinstate the original position of the boundary. don't know about the trees (or do you mean shrubs) as i have seen both situations where shrubs have been removed (because they impeded the adjoining development) and also large trees left to remain and the new fencing built around them. sounds like this is going to be the avenue to pursue if any dispute arises.
