Boundary survey shows neighbours are occupying our land

Building the Dream · May 21, 2014 9:38 pm

Looking for some advice/personal experiences.

My husband and I bought a block of land with a delapidated house on it late last year which we have now demolished and are ready to construct a new home on.

A boundary survey today revealed the fence dividing our block and the neighbouring property is 28cm out, meaning that over the length of the 45m deep block there is 12 sqm of land we have paid for on their side of the fence. The surveyor told us he needed to report this to the Lands Titles Office and that we could basically give the neighbours the option of either moving all the fences back to the correct position (they are unlikely to want to do this as they have a huge shed just inside the fence line in their backyard which would be a nightmare to shift) or ask them to purchase the land from us.

Has anyone had experience with this issue? I am really scared about getting off on the wrong foot with these people but I also feel that we paid for that land, we're entitled to it/to be paid for
It! And if they were to buy it , would the price be determined from what we paid at auction in September 2013? Or the council rate value?

We are in SA if that helps.

Thanks.

AussieMark · May 21, 2014 9:53 pm

They will most likely want their surveyor to assess as well. This happened to my mother but her block was not vacant. I dont think it was as much either so better to avoid the drama.

Although you have paid for it you could look at it this way, your building will just be 28cm closer to the fence although the boundary set back will be correct. I would look at your pan and see what impact it is going to have. If the side was going to be a set back of a meter then your house would move as 700mm is a little squishy, less so if the set back is 1.5m.

Worth having a discussion with the neighbour and assessing the options. I would ask the council for advice to follow.

Cheers
Mark

Building the Dream · May 23, 2014 11:15 pm

Thanks Mark. I think you have posted in the other area where the mrs posted this, thanks for your continued interest.

Saint Mike · May 24, 2014 8:03 am

I'd be wary of causing too much trouble - it sounds a bit of land but in reality its not that usable.

Marcia · May 24, 2014 3:24 pm

We had this happen about 10yrs ago on a block we bought to build on. Problem was, neighbouring property had already built and established their yards. They also had a whopping big retaining wall built on the boundary (very steep road, they were on the high side). Was about 60m2 involved. We spoke to them about it and they weren't interested, citing they had been there for 15yrs and possession was 9/10 of the law!! Lawyers at twenty paces ... Eventually they bought us out, the land titles changed their records and we sold the block. Decided that too much hassle to live next to them after all we had been through and we were relocated back to Perth so was surplus yo our needs. My advice - work out how much it means to you, is it worth the hassle if you love the block location and everything else going for it. You have to live next to them and most people want to live in harmony.

Building the Dream · May 24, 2014 3:55 pm

Thanks guys.

28cms doesn't sound like much but the house we have designed needs that 28cms to meet council guidelines.

We have signed with a builder and already have council planning approval as well. The builder is due to start within about a month.

I am still waiting on a copy of the survey report.

Forg · May 24, 2014 4:06 pm

So the fence itself denotes the division between the blocks?
You can't just build the house 28cm closer to the fence which happens to be 28cm onto your land?

Building the Dream · May 24, 2014 4:20 pm

On the other side, I am building to the boundary.

To use round figures, the block is 16 metres wide.

The house is 15.1 metres which leaves the required 900mm to the other boundary.

This 28cms means we won't have the council required 900mms to the boundary.

hazatude · May 24, 2014 4:28 pm

We are going through Adverse Possession right now! We bought our house June 2012 and had a survey done. We identified that one neighbours has 18.83sqm of our land. We thought it would be an easy fix, since they've only built a small shed on the land. Boy did that go south fast! They didn’t give us an opportunity to offer to pay, nothing. Bottom-line they have most likely had possession of it for 15yrs+. Therefore get to keep it (we’re in VIC.) It’s a shame neighbours cannot sit down and talk about it. If the roles were reversed, we would gladly give it back or try and work out something that was amicably. Good Luck!!

Forg · May 24, 2014 5:38 pm

Building the Dream

On the other side, I am building to the boundary.
To use round figures, the block is 16 metres wide.
The house is 15.1 metres which leaves the required 900mm to the other boundary.
This 28cms means we won't have the council required 900mms to the boundary.

That's what I was talking about, though; according to the surveyor, the fence is installed 28cm on your side of your land; but is "the boundary" defined by where the fence is or where the surveyors say your land is?

Building the Dream · May 24, 2014 5:49 pm

Hi Forg,

The boundary would by defined by the records held by the lands title office and on the title that you receive when you purchase the land.

AussieMark · May 24, 2014 5:54 pm

Thats what I also posted. The boundary is exactly that and the fence is not the boundary as far as I am aware.

I would think your house would still be the correct set back from the boundary just 28Cm closer to the fence.

Have you asked the council and assess how squeezy it would be. It may be a large worry for no reason.

Building the Dream · May 24, 2014 5:55 pm

Hazatude,

The surveyor last said the house with the shed is ok and the fence and shed is actually 100mm inside their block.

This means that the house with no shed or structure has the fence 380mm on our land.

The fence is probably 5 yrs old max and I am assuming that's when the error with the fence was made.

The current owner next door has only had the house for probably 2 years and would be unaware.

I'm waiting for the survey report, then legal advice before I approach them.

Building the Dream · May 24, 2014 6:03 pm

No I haven't flagged it with council at this stage. Their standard guidelines which they post on the net indicate they wouldn't approve it. They possibly have some discretion but I can imagine it would be a bit of a battle.

I'm gathering as much info as I can before bringing it to their attention as they might withdraw the approval.

hazatude · May 24, 2014 7:28 pm

BTD - sounds like you are in a better position then us. I agree not to not speak with the Council. I use to work for one. This was/is a very common issue that residents wanted assistance with. Due to this being a civil matter, they usually don't get involved. They could pull or place your approval on hold until all is resolved. If you like to read, check out your state legislation and case law on the subject. However, others may have different experiences that they can share with you. You may find that the biggest issue will be who's paying for the move or new fence

Building the Dream · May 24, 2014 7:55 pm

I have had a bit of a read, it seems a big thing in my favour is that they do not have any structures on my land. They have only owned the house for 2 yrs so cant argue they have used it or the last 15 yrs. Fences Act supports me, Real Property Act I wasnt as clear on.

A neighbour who we're friends with said she heard of the same issue a few doors down from us. One owner reclaimed 20cms of land from another owner which also required them pulling down a carport to give the land back. Not sure of the details but apparently they haven't spoken since.

Another issue with the fence is that the neighbour has placed a garden bed against it (their block is slightly more elevated than mine) which has caused a distinct lean towards my block. A small retaining wall should have been put in.

deluxes · May 24, 2014 8:39 pm

I think this is going to be tricky anyway you do this...
Have the conversation with them, ask them what they want to do (explain that you don't want to get off on the wrong foot etc, but it is an issue for you) and try and approach it the way you'd want to be approached should the shoe be on the other foot.
They may be decent people who made a mistake and will be keen to assist in rectifying it, or they might play hardball.
Or they could be somewhere in the middle and act dependent on how you approach it.

Have all your legal information up your sleeve, but for the sake of an easy process and less stress try the softly, softly "lets work together" angle first.

It's a long shot, but it may save some unnecessary grief and you have nothing to lose by trying it.

Mrs Brown Bear · May 25, 2014 10:25 am

I'm going to be going through this as well. Our neighbours have the fence about 20cm onto our land. It's not in fantastic shape either. Their property is an investment property with tenants. They were pretty reasonable when we asked them to move their electricity which went over our land and paid for a private pole to be put in. We have to pull the fence down anyway, as we've done a cut to the boundary on that side and need a retaining wall to be put in. Will be dealing with it when we get the retaining wall and fencing quotes done.

I don't know why people are recommending to let it go. 1cm I would understand, but we're talking about a substantial amount of land!