hi there
Hope you can give me some guidance.
we bought a property 2 yrs ago. the property comes with a shared drive way ( right of way) which lead to us and our neighbors garage at the back of the houses.
Recently, our neighbor told us they will do some big reno to their house and they mention that the fence we had now is actually about 2.5 meters less (shorter) than it's actual boundary. so by law, they can re-define the fence to be extended for another 2.5 meters, which seems very likely to be too narrow to drive through the gate. as a result, we will then lose the access of our lock up garage at the back , which will substantiannly decrease our house value. our neighbor will build a garage in the front of the house so it wouldnt affect them as much.
we are quite shocked and by looking through the sales contract, we didnt found any document mention the current fencing is actual not where the boundary was. there was a survey report attached to the sales contract, but it did not mention anything about the fencing.
quite angry that the fact this fencing thing was not even highlighted to us at the time of sale, I wonder if we can seek compensation either through our solicitor or the surveyer company by not disclose those crucial information. Had we know that the fence is not in the right boundary and the fence position is crucial to access to the garage. we would not purchased this home.
I dont know what is our options are at the moment, please can you help. any advise is welcome.
Appreciated.
btw, we are in NSW Sydney suburbs.
Regards,
Amanda
Did you get a survey done when you purchased the property? If so, what does that survey show?
If there is a shared driveway, is an easement registered on the title?
These are the first questions you need to get answered.
thanks for reply. the vendor did a survey and attached the survey report to the sales contract. on that survey , it draw a sketch and did have an easement registered on the title ( it's called right of way) , based on the figures showing in the sketch, the fence is 16.5 meters and subject to right of way for the shared drive way . but the actual fence exist now is only 14 meters. so to say, the survey didnt point out that the actual fence is shorter then the sketched boundary. it only says there is no encroach upon any adjoing proeprty or street.
never would i imagine the fence is actually shorter than it was supposed to be, nor did we go to the house and measure it's actual fence length before we sign the contract.
based on the sketch, ( i think ) our neighbor is within his right to correct the fence to where the actual boundary was (since he is not touching the easement portion of the land, he is only try to fence up his own land) , but doing so will make it almost impossible for us to drive a car through . ( due to the angle etc…)
I was told that the two properties was used to owned by father and son, so they must have voluntarily shortened the fence in order to allow both drive through smoothly. now my neighbor wants his land back which is fare enough. but I end up paying the huge cost which i was not made aware of in the beginning.
Im no lawyer but from what I can see they are doing nothing wrong. You may be able to fit "a" car through maybe just not a sizeable one.
How long has the fence been there? If you can prove it's been there for the relevant amount of time you could claim the fence now defines the new boundary and the land is yours. It's the adverse possession law.
http://www.relv.com.au/advposs.asp
Jacqui Middleton | Middleton Buyers Advocates
http://www.middletonbuyersadvocates.com.au
Email Me | Phone MeVIC Buyers' Agents for investors, home buyers & SMSFs.
Jac, don't know if adverse possession could apply in this case. The person must be in possession of the land for 10-15 years (varies state to state. 10 years in NSW I think) to the exclusion of others. This doesn't appear to be a fence out of alingment but just a fence that will be extended. Any aplication for adverse possession would be complex and very costly.
What could work is to apply for an easement. There is an implied easement which allows the back garage to be accessed. It sounds like all the information was in the contract and the survey, but it wasn't something that stood out.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Hi Amanda
Seems like some legal advice is required here. Terry above is in Sydney – wouldn't hurt to call him.
Cheers
Jamie
Jamie Moore | Pass Go Home Loans Pty Ltd
http://www.passgo.com.au
Email Me | Phone MeMortgage Broker assisting clients Australia wide Email: [email protected]
Thanks all for your replies. Especially Terry.
Now We are in the process of negotiation with our neighbor to see if we can sort this out between ourselves first. I think we will need to do some drive through testing before set up the new fence. As long as we can pass the vehicle , I am fine with re define the boundary. as we end up having an extra tiny bit of land too
Is it crucial ( or rather 'common sense') to have survey done yourself when you purchase a house ? this is my first time buying a house, I only purchased a few units before. I was never aware that we need to have our own survey done prior to purchase a house? I thought only the ‘ building and pest’ was necessary for house purchase ( like you do strata report when purchasing an unit) .
What pisses me the most is that we were totally blind about this issue before we purchase.
I wonder if fencing position and boundaries are by law mandatory to be disclosed in a sales contract ?
Since the vendor’s surveyor report ( attached to the sales contract) didn’t clearly mention this fencing boundary discrepancy issue ( it only emphasis on no encroachment , which I thought was what people are mostly concerned when buying a house) . Should a surveyor clearly state the fencing boundary position especially when it is not aligned, or should ( lacking of this crucial information) being picked up by my lawyer before I sign the contract ?
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