If you are happy to pay the complete costs for the new fence, then you don’t need your neighbours permission. The fencing Act in most states only applies if you want them to contribute to a new fence. With that of course goes a word of warning. If you want them to contribute, you must follow the procedures in your states fencing Act to the letter.
cheers
Here is some info that gives the basics of adverse possession.
Tools
Adverse Possession
This is an old doctrine that says, basically, that where a trespasser remains in possession of land for a period of time (generally 15 years) then that person acquires ownership of the land.The doctrine prevents someone who has used land for a long period of time, believing it to his/her land, from being ejected by someone who discovers a technical defect relating to the original boundaries.
A typical example is where a fence is incorrectly placed inside the proper boundary of a property. The properties on either side of the boundary may have been sold numerous times before someone discovers the mistake. The owner of the land that has “lost” because of the mistake, cannot now force the owner of the land that has “gained” to move the fence back to the original boundary.
Surveyor required
Making a claim on the basis of adverse possession is no simple matter, and the services of a qualified surveyor will be required.The role of the surveyor is to perform what is known as a “check survey”, to determine the proper boundaries of the property according to the original plan of subdivision or survey plan.
The surveyor’s drawings will usually show the boundaries according to the plan, together with the fencelines as they appear “on the ground”, so that a comparison can be made.
It is important to use a qualified surveyor who is prepared to give evidence in court if necessary.
Choosing a surveyor
When choosing the surveyor you should consider using a surveyor who is familiar with the local area. It is often the case that the surveyor will be familiar with the property, particularly if previous owners or neighbours have consulted the same surveyor in the past.In Victoria, surveyors must be licensed by the Surveyors Registration Board of Victoria. (To visit the website of the Surveyors Registration Board of Victoria, just click on the following link: Surveyors Registration Board of Victoria).
The website of the Surveyors Registration Board of Victoria includes an Onlne Register of Licensed Surveyors, so that consumers can readily find a properly qualified and licensed surveyor.
Cost of a survey
It can be very difficult to determine the cost of a survey, as land will vary in size, shape and other characteristics.The best way to find out what a survey will cost is to contact a number of different surveyors, explain the nature of the problem and the type of survey required, and obtain a quotation.
Remember, that the cheapest quote is not always the best. Full surveying qualifications, membership of a professional surveyors association, and good local knowledge are all important considerations when choosing a surveyor.
If the survey confirms an adverse possession issue
If you have had a survey conducted and you believe that there is an adverse possession issue, contact us for initial legal advice. Making an adverse possession claim is not a straight-forward matter, and the process of making and substantiating a claim can be quite complicated.©2005 Laywers Real Estate
We’d be prepared to pay for a new fence if it means we get our land back (or most of it – as close to the boundary as practically possible). We would put the cheapest one up that we could find.
An update – have asked my solicitor to ask if Vendor would be willing to pay half the costs of getting a Land Survey done. Because that is the first step…..
Tools,
What if it’s not the original fence that is on the property? The fence in this case is very new.
I should have said way earlier that that diagram (I read the tiny writing – it’s a really old land survey) I got from my solicitor (that shows the encroachment) dates back to 1953. I guess that means that the neighbours own that land (according to that doctrine Tools published)…..
Bugger. Well I guess that resolves the issue somewhat and I can stop tearing my hair out!
Just got off the phone from the one and only Land Surveyor in the Town we’re buying in. He knows the place well (old, wise man) and he pegged out the (what we thought was the offending) neighbours property!! He was supposed to go back and peg out the fence boundary but the neighbours never got him back to do it and they just put the fence up themselves. The fence is not too far away from the house so one would assume that it’s positioned within it’s rights.
The old land survey my solicitor gave me from 1953 is actually showing an old boundary line (the unbroken line) that has been superseded by the new boundary line (the bold, unbroken line).
BTW: This man also said that that old doctrine only applies to Systems Land and that the land we’re looking to purchase is Torren Title and therefore the doctrine does NOT apply.
So, after much stress, it looks like all is well and we can proceed with the purchase, yay!
And I was so close to pulling out! All I needed was to speak with this man this morning.
Oh, and for saying that that unbroken line was an encroaching fence, I think I should sack my solicitor!!!
Hi Pasandbec
Just as a sidebar to all this – the property l have just purchased has a zig zag in the fenceline.
It goes 50/50 and is covered by a solicitors letter.
l have arranged with the neighbor to reinstate the fence line to it’s prpoper position.l was advised by a friend who had spent many years on the local Council that as long as the rates had been paid, no arrears, then Adverse Possession could not apply.
Like you l thought long and hard before buying and had a lukewarm solicitor who was not much help.
Hope it goes well for you!!
Steve
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