Who’s at fault with a re-establishment survey error

have started building, ie: builder has poured footings on our boundary.
Post pour my builder had concern that the recent re establishment survey conducted by the land surveyors may be wrong.
Ie: our true title boundary has just been identified as 150mm over the current fence into the neighbours property. But this error was not picked up / articulated properly in the re-establishment survey, and the drafty and builder assumed the survey conducted was accurate.
Who should I be firing my rockets at most, builder, drafty or the land surveyor.

I’m chasing clarification from my builder and will be seeking clarification on what happened from the surveyor, suffice to say I am furious and wonder how hard I should be complaining to the surveyor for compensation or discounted invoices as a neighbour not wanting to budge on the boundary that would cause protracted discussions, vcat etc for months etc - Which i cannot wait on, with the build underway already

 

If the fencing has been in the same position for several years, then in Victoria your boundaries might be the occupied boundaries rather than the land title boundaries.

How is your builder an expert on where the land title boundaries are?

 

Yes I guess adverse possession could b an issue for me

My builder was obviously plotting out for the building and thought something wasn’t quite right

The surveyors came out immediately (realising they had made an error)

 

And the builder went on their merry way or set out to the amended survey points?

 

I am a land surveyor so interested in seeing what has happened here.

Normally on a title re-establishment plan we have a disclaimer stating that any land between the title boundary and fencing/buildings cannot be assumed for design purposes. This statement is to cover the possibility that possessory rights may have accrued in your neighbours favour for any encroaching fencing/buildings. Is that what the issue is here? That the neighbour has possessory rights to the 150mm between the fencing and title boundary? And that your builder has built into that land?

 

can you clarify... did the builder pour the slab to the fence line? and that then throws out the building plan? because drafter etc have worked off title?

 

The surveyor has responded to me, and appears they may have corrected things with offset nails (only in the past month), waiting to speak to the builder again regarding if someone jumped the gun with pouring footings, but regardless, my time frames were closing in, and 1 month leaves little time to negotiate with a neighbour regarding our land vs adverse possession / vcat possabilities that would be drawn out. As opposed to if this was identified correctly last year

 

There are always last minute/rushed conflicts to resolve in a building program...just the way it is - translating paper solutions to real world/on ground outcomes. It happens

 

There is no adverse possession unless the neighbour fights for it in court, otherwise the land owned is whatever is stated on the title.

To elaborate, if that fence has been 15cm over on your land for even the past 50 years, the neighbour can only make a claim to it if they go dispute it at court. It is a long and tedious process and you could possibly always outspend your neighbour, otherwise be good decent people and just agree that it is as per the land title.

Be aware I am not a lawyer and this is not legal advice, but every one of my last developments had title issues, in every case we just moved the fence back to where it belonged. it's always been a case of 5-15cm. In the scheme of things it is a lot more important to just keep things moving and getting on with life.

 

Dont forget that possessory rights is different to adverse possession.

Possessory rights occurs when someone occupies someone elses property for over 15 years. The occupier then gets possessory rights and the title holders rights to that land is extinguished. See LIMITATION OF ACTIONS ACT 1958 - SECT 8 Action to recover land
"No action shall be brought by any person to recover any land after the expiration of fifteen years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person"

Adverse possessory is where someone who has accrued possessory rights makes an application to adjust their title to reflect the occupation. Ie, they adjust their title to the fenceline.

Someone who has accrued possessory rights (15 years of continuous, uninterrupted and exclusive occupation), has the choice to make an adverse possession claim, but they dont have to if they dont want to, they can simply continue using the land.

 

What this means in practice is that if a fence is within your land, and you intend to knock it down and build on the title boundary, then you have to be very careful that your neighbour hasnt accrued possessory rights. If they have, and you knock it down and place on title, then be prepared for ramifications. Whether you win or lose afterwards, and ive heard of differing outcomes after the fence is gone, the delay and interest expenses could be a project killer.

It is always easier to take the approach of designing within your fenceline/or title boundary, whichever is worse. And as shootingfish implied above, if its a small difference between the two (50 - 100mm), then it could be insignificant in the scheme of things.

 

Looks like my builder will be able to build within our spec, maybe losing 5-10mm at worst. Without removing fence.
Just as well, due to my builder chatting with the neighbour today who threatened legal action etc etc, if he removed the fence for 24hrs whilst the brickwork is done.

 

On what legal basis would the neighbour sue? And in which court? Especially if it’s put back in 24 hours!

If you are having face brick, it’s a lot easier to get a good result if the brickies have access to the wall from outside.

Otherwise, they have to build it ‘overhand’ and it’s slower and harder to get neat, clean joints.

 

Does the appearance on the 'face' matter much if the wall is that close to the boundary/fence line?

 

Between the wall and fence will be millimetres, so appearance wont matter, Builder said not a problem to clean up mortar joins once above fence height. Unfortunate that neighbour is being difficult, but builder see's it as not too bigger issue