Advice for Fencing Issues

cho0kie on 13/11/2018 - 11:43
Last edited 13/11/2018 - 13:59

Hi everyone, yes this is another fence issue, but i would love some advice.

So we built our house in a new estate area in North Vic and everyone was building at different times, so completion varied with our neighbors.
We have two back neighbors and one built a fence and never asked for any money and we thought great!
It wasn't until we moved in and was sorting out our fences with our other back neighbor that we learn back neighbor 1 (BN1) built their fence over the boundary line by 10cm .

Our fencer measured and was 100% sure of the boundary (4 house and land plans were used to confirm) and built our other fences correctly. We got into contact with our BN1 and because their fence was built by the builder. The builder has said if you want it moved, pay for a land surveyor to check otherwise the fence stays. BN1 is currently a rental FYI.

Our council won't do anything about it because its a civil matter.

So most of the contractors we have had to our house to do other things like the deck that needed permits have all given us the same advice after measuring the fence and boundary.
Just move the fence ourselves. Because its a rental, they probably won't care and if they do, then they can pay for the surveyor. Moving the fence is cheaper than hiring a surveyor. (Our BN1 won't agree to pay half the cost)

The fence is 6.5m long and currently we have a "zig zag" in our fence where they don't a line. Plus they only built a 1.5m fence when we could have built a 2m, which we did on the other side.

So if you were in my shoes, would you just hire a fencer and move it one sunny day during business hours, when no one is home at your neighbors house?

edit for clarity:
BN1 won't agree to pay for the surveyor, nor do they agree to pay for the fence if the surveyor finds in our favor. They are saying because they already built the fence once.

Poll Options

  • 33
    Move the fence
  • 8
    Don't move the fence
Home & Garden

Comments

  • Skramit on 13/11/2018 - 11:55
    +1

    Pay for the surveyor. Perhaps see if the neighbors will split the cost with you.

    I've seen this happen even in old neighborhoods and the surveyor is worth it in the long run. It will help sort out any potential neighbor wars.

    • cho0kie on 13/11/2018 - 13:58

      They won't agree to pay for the surveyor, nor do they agree to pay for the fence if the surveyor finds in our favor. They are saying because they already built the fence once.

    • poboy on 13/11/2018 - 15:00

      You also need to be sure that the builder will remedy the situation if the surveyor rules in your favour. It would be annoying to pay the surveyor and have the builder just reply with "ok, I'll get onto it (never)". Look at your contract to see if you have any leverage in this situation.

      Before returning to the builder with the surveyor results, be clear on what you want and how much it will cost. The builder will use any ambiguity to do nothing.

      Good luck. It sucks to be in a poor situation caused by people who don't take care.

  • GG57 on 13/11/2018 - 11:56
    +1

    Are the fence posts on your side or on BN1's side?
    There is probably 10cm in that.

  • dasher86 on 13/11/2018 - 11:57
    +4

    Move it 10 CMS in your favour.

    • geek001 on 13/11/2018 - 12:03
      +1

      Lol. I like this idea. Since BN1 is a renter and doesn't care, perhaps OP should pay someone to move the fence and build it 10cms in OP's favour?

  • BOGOF on 13/11/2018 - 12:02

    Fencing can get quite messy, below is a good resource for Victoria.
    https://www.lawhandbook.org.au/2018_06_04_05_fences/

    It wouldn't be a good decision to just 'move' the fence without permission.

    Suggested process…..Ask permission from the owner of BN1 to move the fence at your cost. if declined, agree to have a survey done (of which the cost has to be shared by both parties). Be aware that the survey may show BN1's fence to be correct and the other fences to be incorrect.

    Always approach these issues amicably.

    • HighAndDry on 13/11/2018 - 13:12

      Eh, if OP is 100% certain it's 10cm on their land, there's no issues with moving it.

      • LFO on 14/11/2018 - 20:07

        Is the OP a Certified Surveyor or experienced one?

        Reading maps and plans is not that hard but is not that easy either.

        Why was the original fence built in the "wrong" place.
        Not that obvious.

        • cho0kie on 15/11/2018 - 12:17

          When you use lassi and also looking at the town planning maps, you can see the whole block. They followed the fence line from the houses facing north. however the west and east houses (mine and my back neighbor) fence line should have followed the houses facing south's fence line. the North houses like my house is a smaller parcel of land and the fencing isn't a clean line through thru.

          All the house on my south side 6.5 middle point have the "correct" fence and everything north from the middle point are "incorrect" we have a fence line that looks like ____——-

  • timcc0208 on 13/11/2018 - 12:11
    +1

    Just leave it and move on mate

  • CLoSeR on 13/11/2018 - 12:22

    You'll find most boundary fences are not on the exact boundary; 10cm is not a lot.

    If it's bothering you then as suggested get a surveyor to confirm boundar and pay for the fence to be moved/rebuilt but you'll probably have to fit the bill for both.

    Do not suggest doing anything without informing neighbour.

  • [Deactivated] on 13/11/2018 - 12:53
    +1

    Not worth the effort for 10cm. Just turn it into a positive - less lawn to mow.

    Sounds like your in a large regional town so the block was likely not overly expensive and probably 700m2 plus?

    • cho0kie on 13/11/2018 - 14:00
      +1

      its 10cm by 6.5 meters and if we don't dispute it we lose the land off our title.

      • Mentallysick on 13/11/2018 - 14:07

        Why would you lose your land?

        • [Deactivated] on 13/11/2018 - 14:13
          +1

          Titles just don't change, do they? They would need to be remeasured and cost a bit to change. If you have a mortgage then I doubt the bank would let someone modify your title.

          Or are we talking about adverse possession? That in itself is very complex and expensive.

          • cho0kie on 13/11/2018 - 14:29

            @[Deactivated]: yeah i am talking about adverse possession. i know its 15 years however i was reading that it blurs when talking about fences and the longer the fence is up the longer its an issue.

            Sending a letter isn't enough, we have to move the fence as it defines the common boundary.

            also because the our land is in their yard. we are liable for injury. The renters try to send us a bill when their dumb ass kid fell off the fence.

            • deelaroo on 13/11/2018 - 14:50
              +2

              @cho0kie: Have them lease the land off you for $1 a year with a signed contract. That would disprove any adverse action and save you both the cost and headache of surveying and moving the fence.

            • [Deactivated] on 13/11/2018 - 21:08
              +1

              @cho0kie: what you can do to avoid adverse possession is draw up a pepper corn lease agreement that covers the 10cm, only needs to be for $1 for 99 years, but then they wont be able to claim adverse possession.

            • LFO on 14/11/2018 - 20:13
              -1

              @cho0kie:

              The renters try to send us a bill when their dumb ass kid fell off the fence.

              So is the problem the fence or how much you hate renters? How much you hate your current neighbors?
              You keep repeating the "renters" stigma as they are kind of known criminals, poisonous infected human beings…

              So is it the fence or is it to have a investment property next to your home ?????

              • cho0kie on 15/11/2018 - 12:05

                @LFO: I keep mentioning the renters because the owner doesn't really maintain the property. We don't care if we have renters as neighbors or not. my husband thinks because its an investment property, the owner won't even bother if we move the fence as long as she is getting rent money. I think she still will mind.

                Back story to the notice. When we first realised the fence was over the line. We went to the house and knocked, we told them the issue and they told us the relevant contact person at the agency, which lead us to get into contact with the landlord. However, some where around 1-2 months later, we got a letter in our mail box that their 4 year old was on the fence trying to climb it to get his ball back from our yard but when he got to the top fell off back into their yard breaking his arm. They state that the fence was in our land and he was in our property when he got hurt. We replied and said to get a surveyor to prove that is our land and to contact their landlord as they had incorrectly defined the property boundary and we were not at fault. We never heard back.

                We don't haven't had any other contact with them other than, throwing balls and the occasional barbie doll back over the fence.

      • HighAndDry on 13/11/2018 - 14:23
        -3

        That won't happen. If you're worried about adverse possession, send a letter saying you think their fence is over the line, you want them to share the cost of a surveyor and move the fence, but in any case you don't agree to waive any of your rights to the land, etc.

        *not a lawyer, not your lawyer, all that jazz.

        • Ayanami on 14/11/2018 - 11:28

          This is not correct. The fundamental of nature of adverse possession is that it is possession which is adverse to the interest of the true owner. Sending a letter saying that the true owner does not waive their rights will not stop a claim in adverse possession.

          • HighAndDry on 14/11/2018 - 11:31
            +1

            @Ayanami: No, the fundamental nature of adverse possession are:

            1. Possession adverse to the true owner (you're right), AND
            2. Possession without the consent or licence of the owner

            Amongst others.

            The letter basically is OP saying: "I know this is happening, I'm allowing it to happen, but only until I get around to doing something about it."

            Adverse possession is an almost archaic principle these days and notoriously hard to try and win on in the world of Torrens title, and conversely is trivially easy to prevent. There's no realistic chance of OP's neighbour winning on an AP claim.

            (Nice username though)

            If you don't believe me, maybe you'll believe this:

            Possession cannot be with the consent of the owner

            Which means if OP temporarily consents to the neighbour's use/possession of the land for the time being, there cannot be a claim for adverse possession.

            • Ayanami on 14/11/2018 - 11:51

              @HighAndDry: The OP hasn't given their consent or licence for where the fence is and the letter you describe doesn't amount to that anyway. In any event, I do not think the OP can just say "I give my consent to you possessing the land but not owning it" when the neighbour is not conceding that the fence is in the wrong spot and that the land is the OP's. There is no mutual agreement as to the nature of the "consent". In the absence of an actual consent or licence (where the parties are agreeing on the same thing) the owner has to make a claim to retake their land within the limitation period (which differs depending on the state and does not necessarily run from the time the OP became aware of the issue, it could well be before then). If they do not, then there's a real prospect of a successful adverse possession claim.

              The letter you describe might help, but I have serious doubts. As you have said, you are not a lawyer. For you to state that "there's no realistic chance of OP's neighbour winning on an AP claim" is incredibly dangerous and not helpful to the OP.

              For what it's worth, I am lawyer. I do not specialise in property law but do practise in some areas of it. This should not be taken as legal advice for anyone, as I do not know all of the circumstances. There are many factors to consider here, including the worth of the parcel of land in issue.

              As an aside, I think your comments on this forum are generally helpful and/or humourous, although I don't always agree with them. But in this instance, in my view, your comments are not helpful at all and are too absolute regarding matters in respect of which you are not qualified. I do not mean that in a harsh way; but we are dealing with people's substantive legal rights, and any action may have serious consequences for all concerned.

              • HighAndDry on 14/11/2018 - 11:56
                -2

                @Ayanami: I put "I'm not a lawyer, not your lawyer, etc" as a general disclaimer, not because I don't actually have the requisite knowledge or skills.

                There have been, at most a handful of adverse possession claims over the past decade probably, and even less that have been successful. It's an obsolete principle for all practical intents and purposes. Discussing it like it's a real risk is utterly overwrought and unnecessary.

              • HighAndDry on 14/11/2018 - 12:47

                @Ayanami:

                For what it's worth, I am lawyer.

                Oh also - if you are a lawyer, you should know it's not a good idea to publicize the fact on online forums on the off chance someone places more weight or value on your comments or opinions, especially as I'm pretty sure your professional indemnity insurance won't apply here. There's no upside (unless you count internet points), and a lot of potential downside.

                • jackspratt on 14/11/2018 - 14:54
                  +1

                  @HighAndDry: Yes, I wanted to place some weight and value on Ayanami's comments ………….. but bugger me, I can't work out their name or address.

                  • HighAndDry on 14/11/2018 - 14:58
                    +1

                    @jackspratt: Have you checked Nerv Headquarters in Tokyo-3, Japan?

                    • jackspratt on 15/11/2018 - 01:00

                      @HighAndDry: Thanks - I'll make a note of that, just in case I decide to refer him to the Legal Practitioners Board for potentially dodgy advice he gave anonymously on a forum.

                      ps you don't happen to know his surname do you?

  • [Deactivated] on 13/11/2018 - 13:10
    +2

    after you parry, watch out for the riposte

    • BOGOF on 13/11/2018 - 13:16

      Or is that a 're-post'?

  • Clivey In Space on 13/11/2018 - 15:01
    +2

    To get an accurate measure of where the boundary lies, it needs to be done off survery markers/pegs. It can't be relied on to measure off anything else, so what did your fencer measure off?

    We had an ongoing disagreement with a neighbour in regards to a fence and retaining wall. As we both could not agree as to who was liable for the cost due to how each of us interpretted laws and survey plans, in the end we paid a survery to clearly mark out the boundary. It turned out that the boundary line on the building plans were incorrect.

    My advice would be:
    * keep everything amical and document everything. Email communication is best.
    * I don't believe you would liable for any accident that occured in the neighbours property, as generally its the fence that delineates property ownership and resposibility. BUT check with council as to what they say.
    * 10cm is not a lot of land to be worrying about in my opinion, however you need to weigh up the cost you will more likely incur to have the boundary proven and fence moved. You may find you have already gained 10cm on the otherside of your property, but you will need a survey line to prove.

    The cost for the surveyor I used on the Gold Coast was $800, which in turn ended a 1 1/2 year ongoing polite disagreement with the neighbour and saved me $6000 plus.

    • Skramit on 13/11/2018 - 16:17

      This.

      OP you have to think long term. The cost of a survey is going to be worth it in the long term. Not just financial cost but emotional stress will take its toll.

  • WreckTangle on 13/11/2018 - 20:09

    10cm is not worth disputing. If youre wrong it’ll cost you the cost of a surveyor. If youre right the neighbour will charge you half the cost to build the new fence. Either way you lose.

    • cho0kie on 14/11/2018 - 13:21

      its 10 cm by 6.5 meters and we currently have a zig zag fence. because the other 6.5 is built 10cm the other directions. to its kinda ____——-
      We lose even more if we were to sell. We have assessors in our property and they have all recommended we fix the fence

  • Euphemistic on 14/11/2018 - 07:34

    Get the surveyor, then get the builder to move the fence if it is in the wrong spot.

  • backpaqer on 14/11/2018 - 10:32

    Our 40m side fence is 10cm out. Neither here nor there. My garage was supposed to be built out 150mm from the property line but happy to not pay for 8m of extra fencing

  • Ayanami on 14/11/2018 - 11:30
    +1

    Get the surveyor's report. I wouldn't rely on the advice of various contractors who are not surveyors; if they are all wrong and you do it and the neighbours then get their own report which shows that the fence was correct in the first place, you will end up paying a lot more.

    • Ayanami on 14/11/2018 - 11:43

      And then I'd still seek proper legal advice depending on the outcome of that report, and weigh up the cost/benefit, including risks, of going further, including considering whether or not you will have to pay up for half of the fence.

      • cho0kie on 14/11/2018 - 13:18

        thats what we have been thinking of, its only cost $500 for a new fence, even if we had to pay for it twice its still cheaper than a surveyor.

        • SlartiBartFozz on 15/11/2018 - 13:32

          Some surveyors will do a basic feature survey for ~$500, if you shop around. A title re-establishment survey is simpler, so might be cheaper. You could start looking in your local paper or airtasker.

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