Hello folks,
I am entering into a scenario that I’d like your feedback on.
In January 2018 I purchased a property in South Australia to use as my PPoR.
The original double brick dwelling and fenceline was established in 1979.
A few weeks ago, an empty parcel of land next door was put on the market.
The sales listing says that the vendor is in the process of sub-dividing. The existing title includes the parcel of land and dwelling that is next door to the parcel of land being sold. From the streetfront, the single title presents as two separate properties.
This morning while I was away from home, the agent for the vendor came to our door and told my wife that conveyancers had found that our brick fence between properties is ~300mm over the boundary they have marked.
She said they have an offer from a buyer who is concerned about the fence and its impact on their prospective property.
She did not make any request or indicate any next steps.
Based on the research I’ve done, my intended course of action is.
1. Wait
2. Engage a conveyancer of my own if action by the owner necessitates it
3. Wait some more
4. Engage in any formal process that is brought by the ownerDoes anyone have any suggestions for a better course of action on my part?
What are the different ways that this scenario may be resolved?
What are the main risks for me to consider here?
How can I ascertain the status of the sub-division?
A scenario that I would entertain is purchasing enough of the neighbouring parcel to enable a vehicle to access my back yard which is currently impossible since the dwelling spans the full width of the property, aside from a small walk way that is walled by the allegedly encroaching fence.
What would you do if you wanted to explore the possibility of buying the extra land?
Many thanks in advance to you all for your help,
~B-
This topic was modified 6 years, 8 months ago by
animamundi.
Sorry to hear about such annoying experience.
Although I don’t have a solution to offer, I have personally experienced such situation but being
the opposite to your case ie two neighbours fences encroaching into my property.Due to the circumstance being that I was doing a multi-unit development at that time and the local
council planning rules dictate that developer is responsible to put up new fence if existing one is
damage as a result. Therefore, I negotiated with one of the neighbours to re-align the new fence
according to the surveyed title boundary line. The other neighbour is more aggressive and refused to
cooperate so I figured that it’s not worth my while.I see this kind of unnecessary dispute the result of failed responsibility of local council really.
Try to encroach your fence line into public park and see what reaction you get from the council. To me
it’s double standard how it handles such situation.If local council can lay down the rules for fence height for example, then by right they can quite
easily go one step further to lay down the rules for fence and boundary line to prevent situation of
fence encroaching over boundary line.After all, council is being paid hefty rates that only go up year after year and all it takes is
introduce compliance check similar to that for issuing of certificate of occupancy only after criteria
are all ticked off fine.It just comes down to lazy and failed local council who doesn’t want extra responsibility but only the
rates.But please do share your resolution if you come to one.
Rgds,
FXDSounds like you didn’t check the boundaries of the property at purchase. I would forget using a conveyancer and get a lawyer to look at this – but perhaps worth waiting to see what they come back with first.
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
Thanks Terryw, I’m glad to see you here :)
Can you say a little more on why you would favour consulting a lawyer instead of a conveyancer?
You’re right in saying that I did not check the boundaries prior to purchase.
Do you think there’s any merit in speaking with the vendor of my now PPoR, or their agent in relation to this matter?
Because this is legal advice a bit out of the grasp of a conveyancer – whose job is to transfer title.
If you have settled then there is not much point in talking to a previous owner.
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
Thanks Terry, I may have used the wrong language or have a flawed understanding of roles.
I meant that I would engage someone to check the boundaries of my property to see if their assessment is in line with the other owner’s assessment.
Perhaps I meant surveyor?
Do you think this would be a useful step?
Is this task something that a conveyancer would usually do at settlement?
Thanks again,
~BYes a surveyor would be the one to confirm boundaries. This should have been recommeneded by the conveyancer but most buyers wouldn’t do one because of the costs involved. I have never done one myself.
Perhaps the next door has done a survery which they might give you a copy of so as to save you some money – but you might want to check the other sides of the property too.
Keep in mind that if your conveyancer didn’t recommend one they could be negligent and you might be able to sue them and let them make a claim against their insurer, so best not to go back to them now or alert them to it.
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
Did you pay for title insurance as well BTW at purchase? iirc they have provisions for boundary issues.
AdelaideBroker | Adelaide Broker
http://adelaidebroker.com.au/
Email Me | Phone MeAdelaide based mortgage broker
Terry, thank you for that clarification very helpful.
I’ve been an infrequent reader and even less frequent poster here for years and I have always been struck by your awareness across a range of issues.
AB, thank you for your question. I only purchased a standard home insurance policy. I will check the PDS but doubt it extends to cover boundary disputes.
Thanks again to all
Hey mate,
Here’s what I’m thinking:
1. If you’re considering to buy a piece of the adjoining land, that might be a great way to ‘kill two birds with one stone’. It will save the costs and drama of a boundary dispute, so you might get that land for a relatively great price.
2. If that fails, I would wait for the other party to do the first move. They might end up putting it in the ‘too hard’ basket or the actual buyer might not care.
3. If that fails, I would suggest, via informal or formal channels (depends how this all plays out) that they pay for the fence being moved to the boundary line.
4. If that fails, you could either give in and place the fence where it should be (following proof that it is indeed beyond your boundary) or fight it all the way (not that I would bet on your chances here because I can’t seem to think what could you say as your defence?!?)
Hope this helps?
Please do tell us how it was all resolved. It’s always good to learn from case studies 👍😎
Ethan Timor | Aligned Finance Pty Ltd
http://www.alignedfinance.com.au/
Email Me | Phone MeActive Investor & Broker; Based in Northern NSW, servicing Australia wide; Author of '34 Proven Ways to Maximise Your Borrowing Power' (download free from our website)
Hi Ethan,
Thanks for your suggestions. They resonate.
An update for all who are interested…
A few days ago the owner came to my door with a copy of the survey that has been completed – at the request and expense of one of the potential buyers – to discuss the issue with me.
He indicated that he has two offers. One from a buyer who doesn’t care about the boundary issue, and one from a buyer who does. The offer from the buyer who cares is significantly better than the other.
The documented encroachment in the survey is different from what the real estate agent initially conveyed to my wife.
The alleged encroachment is actually 0.14m at the street front and 0.12m at the end of the neighbouring block, which is where my brick wall is.
Long story, short; the corrugated fence could be moved to reflect the surveyed boundaries without requiring that I knock down my brick wall.
The owner said that he would be prepared to move the corrugated fence and bear full costs, if I am willing to play ball.
👍😎
Ethan Timor | Aligned Finance Pty Ltd
http://www.alignedfinance.com.au/
Email Me | Phone MeActive Investor & Broker; Based in Northern NSW, servicing Australia wide; Author of '34 Proven Ways to Maximise Your Borrowing Power' (download free from our website)
I’m not a professional and I may have totally missed something but why hasn’t Adverse Possession come up?
Basically I’ve had a friend purchase a property in Vic, and in this case they can apply for adverse possession to claim the land and it seems it can’t be stopped – just a process to go through. All up it cost him $10k and 6 months (wait time).
You should prob get legal advise and after talking to a mate that’s a town planner, seems you might have the upper hand.
Maybe have a read here:
https://www.lawyersconveyancing.com.au/encyclopaedia/adverse-possession
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This topic was modified 6 years, 8 months ago by
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