Fence arrogance - can you believe this one?

mrs_smith · Nov 27, 2008 8:19 am

Maybe contact the owners and explain it to them so they'll put pressure on the builders too. I'm sure they wouldn't want handover with a fence replacement problem...

jeanete · Dec 12, 2008 10:22 am

So with settlement looming the neighbour's builder has fobbed us off for two and a half weeks claiming not to be able to get their supervisor, my supervisor and the contractors together at the same time for a meeting. With patience running thin, I demand that my builder put some pressure on and finally the meeting takes place and a proposal is put to me...

The fence stays, they won't ask me to pay my share (how good of them, considering they didn't issue a Notice to Fence or consult me in any way in the first place) and I pay for the sleepers at the bottom of the fence, which they will install at no cost to me.

Are you kidding?

The builder and the fencer, who have done the wrong thing, walk away from the problem and leave the owners to work out the legal problems in the future over the boundary, compensation, adverse possession, retitling costs and whatever else.....?

soda · Dec 12, 2008 11:06 am

If you leave the fence as is (I would in the name of good neighbourly relations, and as its less than 150mm) then read the following on avoiding any future adverse possession claim.

http://www.parliament.vic.gov.au/lawref ... /wrong.htm

The party who has the other party's land enclosedshould acknowledge that he or she is occupying it under license and disclaim any rights of possession that might otherwise arise from occupation.

jeanete · Dec 12, 2008 3:50 pm

Thanks a lot for that information. I had discovered that site.

There's part of me that wants to avoid any conflict, but another part that says I'm walking straight into a problem if I let it slide.

There's also a question of whether future owners of the neighbouring property can be held to such an agreement, especially if they are not made aware of it on purchase?

Who pays if we want to fix it up later, either by building another fence or by compensation/retitling?

At the moment the problem sits with the builder and fencing contractor. I can't yet see any good argument why I should let them walk away from the problem, given that they created it?

Kevin Brown · Dec 12, 2008 4:44 pm

There is a reason why a fence has to be exactly on the boundry.
Your side of the fence is on your land and their side of the fence is on their land.. The fence then becomes jointly owned.

If the fence is totally on your land (both sides of the fencing material)...
They have essentially abandoned it......and it yours to deal with.......

Give the builder/neighbour/fencing people 7 days notice to remove from your land, or you will remove and sell it

Sure you dont have to pay for a fence if no notice is given,
but if its exactly on the boundry, you cant legally interfere with your side of the fence without asking the neighbour first.
But if its totally on your side of the boundry (as in your case) its your's to do with as you please
Try the nice approch first, if that doesnt work, put up a fence you want on the real boundry
Get some legal advise if things dont look right

sammy · Dec 12, 2008 4:48 pm

that's an idea. Erect a new fence on the Correct boundary and send half the bill to neighbour!

Kevin Brown · Dec 12, 2008 8:22 pm

noddy
Junior Member

Joined: 14 Aug 2006
Posts: 24

Posted: Wed Oct 25, 2006 8:06 am Post subject: House on wrong block

--------------------------------------------------------------------------------

In theory you would end up owning the house. The land title system gives title to the land and everything on it.

Heres a comment from another thread that sort of confirms my thoughts above

jeanete · Dec 13, 2008 4:09 am

If I give them a Notice to remove the fence within 7 days, what are the chances of them actually doing it, do you think?

I have spoken to the new owners and advised them not to settle until this matter is sorted, but I don't think they have understood the issues and are placing their faith in the builder.

Settlement could be any day now, as I believe they wanted to be in before the Christmas break.

Kevin Brown · Dec 13, 2008 6:48 am

jeanete

If I give them a Notice to remove the fence within 7 days, what are the chances of them actually doing it, do you think?.

Dont forget, its totally on your land, if they dont respond, they have abandonded it. (or illegally dumped it on your property)
This might give you have the right to have it removed.

You have a legal right to use your own land as you see fit
Eg you might want to plant a garden in the very spot the fence now occupies.

jeanete

I have spoken to the new owners and advised them not to settle until this matter is sorted, but I don't think they have understood the issues and are placing their faith in the builder.

Settlement could be any day now, as I believe they wanted to be in before the Christmas break.

Ok so they dont want to delay the settlement, issue them a notice of your intentions

Cabinfever · Dec 13, 2008 8:04 am

+1

That's excellent advice ! Just regard the fence as rubbish dumped on your block. Have it removed, then deal with the fence issue as if the other fence had never existed. If you're worried about this course I'd run it past a lawyer first just for peace of mind. Maybe issue the notice via the lawyer for added effect.

I have the feeling that this issue will bug you forever if you don't get it sorted properly now.

jeanete · Dec 13, 2008 5:46 pm

I don't want to take on the expense of removing the fence myself. I think if they put it in the wrong place they should be obliged to move it and put it in the right place. It is after all their trade and would be a lot less expensive and inconvenient for them to do it than for me.

There is also the issue that it is not entirely on my land - maybe 90% of it - so it is not entirely for me to do as I wish?

I have contacted the owners again to let them know that I consider the issue still to be a live one that needs to be resolved prior to settlement. However, their response was fairly vague, noting that their supervisors "seem happy about the fence" and that this therefore "suggests that there is not a problem".

Sure there's no problem - for the builder. Just so long as the owners settle up this week they'll have their final cheque and be gone.

And there'll be no problem if only I would just shut up and forget about it???

photogirl · Dec 13, 2008 7:11 pm

[quote="I have contacted the owners again to let them know that I consider the issue still to be a live one that needs to be resolved prior to settlement. However, their response was fairly vague, noting that their supervisors "seem happy about the fence" and that this therefore "suggests that there is not a problem".

quote]

Hi Jeanete

It just amazes me the way people just give a damn about themselves and have no consideration about anyone else. Your neighbours are selfish. Who cares what the supervisor thinks, the fact is the fence is encroaching on your land and they can do something about it. It is so easy to hide behind the builder in this case, but they are paying for this house and they can put pressure on the builder to fix this situation. How easy would it be for them to say to the builder "we're not paying the final payment until you fix the fence". They won't because they want their house, they just want to move in and don't care about you. And you are right, they are wanting you to shut up and forget about it. Many probably do.

I remember a recent conversation with a solicitor about an insurance claim we have. The solicitor said that the insurance company will tell you what works best for them, doesn't mean it's right or in your best interest.

I know this is a big headache for you at the moment and you probably just need a break from it all. Send the builder a letter advising that it needs to be moved and give them a specific time period in which they have to reply. If they don't, send them another letter. Keep doing it. It's annoying for you, it's time consuming, but you need to show that you are not going to give up. If they don't reply report them to consumer affairs and send your unanswered letters. You need to try and keep this as the builders problem so definitely something in writing to the builder before handover. Everything needs to be in writing, no more wasting your time talking to the neighbours because you know where they stand. If none of this works, then get a solicitor to write a letter. The only reason I say to go down the other avenues first is to not incur extra costs as long as you can.

There's always the option of pulling 90% of the fence down. Let them keep their 10%, that's fair.

JellyLegs · Dec 13, 2008 7:43 pm

Do you know some strong guys? How hard would it be to pull a fence out? I'd just DIY if they don't respond to a polite written request for it to be removed.

Good luck.

dymonite69 · Dec 14, 2008 12:10 am

photogirl

I know this is a big headache for you at the moment and you probably just need a break from it all. Send the builder a letter advising that it needs to be moved and give them a specific time period in which they have to reply. If they don't, send them another letter. Keep doing it.

Alternatively, send them a letter to offer them two choices. They either take down the fence or you take down the fence within x number of days. After that they can either offer to share in the cost of putting up a new one or you will put one up and send them the balance of the bill later.

Cabinfever · Dec 14, 2008 9:10 am

. . . and whatever way you go there will be some bother & expense. But it's either that or forget about it.

Personally I would see a lawyer with the idea in mind to send a letter demanding a fence rebuild or you will demolish the 90% that's on your land.

Southies · Dec 14, 2008 9:23 am

jeanete, have you checked out this website ?

Fence Disputes QLD

http://images.google.com.au/imgres?imgurl=http://www.fencingonline.com.au/pictures/paling04.jpg&imgrefurl=http://www.fencingonline.com.au/boundary/paling-fence.htm&usg=__zXrOkK6N6B45dbJKGnitiKnTJig=&h=495&w=872&sz=30&hl=en&start=1&um=1&tbnid=Yvux_4PqvansRM:&tbnh=83&tbnw=146&prev=/images%3Fq%3Dpaling%2Bfence%26um%3D1%26hl%3Den%26cr%3DcountryAU%26sa%3DN

jeanete · Dec 14, 2008 10:12 am

Thank you. Yes, I had, but it was timely to go back and look at it again, particularly with respect to mediation if the owners ignore my pleas and settle up with the builder.

I have drafted a Notice to Remove as well as a letter to the Ad3nbrook boss bringing to his attention all of their unprofessional actions in this matter so far...ranging from failing to give notice of their intention to fence, discourtesy on the phone, failing to return calls, fobbing us off for 2.5 weeks, proposing a solution that suits nobody's interests but their own, failing to build a fence adequate for the purpose ... not to mention putting the fence in the wrong place.

Cabinfever, you're right. This has gone so far now that it will bug me forever unless it's sorted.

Given that a single lost sale could cost them more than rectification of this fence, I would have thought they wouldn't want the bad publicity. Especially in the current climate.

Southies · Dec 14, 2008 10:20 am

jeanete, it sounds as though you have everything covered ! And in a most controlled, succinct manner.

Good luck

ahuang · Dec 15, 2008 8:13 am

Just my 2c.

Make sure you got everything documented!

You could have legally get them to remove everything at their cost as you weren't consulted and you don't like the style/meterial/height, ..etc.

You could have as suggested by others, sell the fence as it's totally in your land, build a new one and they still have to share half the cost.

Another option is to get the council/their certifier involved. Not sure about your area, but in NSW I think legally you can stop them from getting their Occupation Certificate if you lodge a complaint to council.

But, while focusing on getting the issue resolved, don't forget that you still have to live with the neighbour for ages. So make sure you think about their feeling as well. Let them you are doing this for both parties' benefit, then they will help you to push the builder. Otherwise they will leave it with you to fight with the builder.

chuth77 · Dec 15, 2008 8:01 pm

Two Options....

Pull the fence down yourself as rubbish dumped onto your land...

Or contact A Current Affair... I'm sure they'd love this one!!