Discovered neighbouring owner stolen 70cm of our land when attempting to replace fence

Hey all,

I've recently bought a unit in Brunswick East, Melbourne.

An urgent matter (ongoing for 5 years now) is trying to replace our entire Eastern fence line which is falling over. This fence line is shared with a house with rental tenants. We've tried serving the owner of the house a fencing notice and it was returned to sender twice. We have tried calling his number but its disconnected. We've talked with the tenants and they have zero contact with the owner, but heard he now lives in Greece & they want to know his contact details to address urgent repairs too. They apparently just pay a bank account and its been that way forever.

After 5 years and getting no where we've decided to just pay for the entire fence replacement ourselves, however upon taking some measurements I've realised the other property has actually built the previous fence 70cm into our property boundary! Meaning 5 of the units on that side have lost some pretty significant space in their already small courtyards. Unfortunately this fence has been in place for more than 15 years so we assume he now "owns" that land under the "Adverse possession" rules.

However, since we cant get onto the owner and he clearly doesn't care, we are considering just having the fencing contractors go in and build the fence back in the original position essentially claiming the land back by building the fence along the real boundary line. They're going to need to clear trees and rubbish on his side already just to put the fence back in its current position, so we figure we'll just have them move it back to the correct spot while they're at it.

What is the worst case scenario here if we did this? Since our land of subdivision shows this is our land (and his likely does too), would the owner of the neighboring property have a leg to stand on if he wanted to then try and claim it back after we put the fence back in, even after 5 years of us trying to contact him to resolve the fencing issues?

Interestingly there's also a hills hoist clothes line hanging over the current fenceline into our property about 20cm, so assuming the fence is put back to its correct position, this would hang almost 1m into our land too lol.

Cheers!

Comments

  • +10

    take 70cm of his land, I'm sure then he will return your call quickly

    • His number isn't even connected as he apparently lives in Greece now and his home address is listed as the property in question lol. So we literally cant contact him.

      • +8

        I live in Greece too when people want me to spend money.

        • I mean at this point we are just going to pay for the entire fence ourselves lol.

          I reckon it's a pretty fair trade to replace the fence out of our own pocket and claim back the land that was stolen at the same time, especially since it's not used by his side at all. Just need to know if there could be any ramifications and how likely they might be

          i.e. could we be forced to replace the fence back to its previous (stolen) position if he returns in 10 years and realises.

          • +3

            @SkMed: fix the fence, tell the tenants that the fence line is wrong, build the new fence, pay the full fee (great if you know the fencer) …

            if the land lord comes back and says that you've taken his land, tell him he needs to pay his 50% of the fence costs first, then prove that you're wrong with the council survey …

            just make sure you remove any trace of the previous fence (if he tried to claim that he stole 70cm 15+ years ago, there's no proof of it and there's now just a new fence, on the proper property line

  • +14

    neighboring

    Also stole u

    Get your block professionally surveyed first to be sure.

  • +2

    After 5 years and getting no where we've decided to just pay for the entire fence replacement ourselves

    Welcome to OzStateCouncil I'm deme SC Esq.

    Why not just start building the fence 2m over and see if he responds then?

    If he doesn't just wait till adverse possession, if he does then you've established contact.

    • haha, as much as we would like that, it would mean building a fence through his house lol. The land in question literally is an unused overgrown messy strip of land on his side, but valuable lost space to the units on our side.

      As he lives in Greece and even the tenants cant contact him, i don't see how he would even know.

      It also means our property boundaries are no longer rectangular as the land he has claimed isn't straight lol, the fence has been built slightly askew, instead of straight.

      • +1

        Then just put your fence to take over half of greece.

  • +3

    Get his tenants to stop paying rent for a couple of months… bet they’ll hear from him pretty quickly.

    (Offer them a carton or two for the inconvenience.)

  • +7

    Not a lawyer, but pretty sure they must apply for adverse possession. It doesn't just happen automatically. I agree with earlier advice that you get a proper surveyor to mark out the boundary line. Take back your land whilst you can.

  • +8

    however upon taking some measurements I've realised the other property has actually built the previous fence 70cm into our property boundary!

    Step 1. Get a suitable licenced land surveyor for your state to mark the boundary. Your measurements legally mean nothing.

  • +2

    Friend living in VIC had similar so I dug recently some pointers about it googling respective;

    Not a lawyer but you could check the below with a qualified property lawyer who is versed in Fences Act (Victoria) & Transfer of Land Act 1958 (Victoria)

    Before resorting to Fences Act (Victoria) section 30C with Magistrate

    Check your Certificate of Title and check that it matches VIC licensed & registered surveyor first as if your title is not right then it will be hard to prove that I would believe.

    If your title is not right you need to check with lawyer if you should do Section 103 correction pursuant to Transfer of Land Act 1958 (Victoria)

    https://roselaw.com.au/resources/what-is-a-section-103-appli...

    Adverse posession in VIC I believe is 15 years and I believe it has to be notorious etc. things property lawyer can advise.

    There has been even a corporates trying to use the adverse posession laws e.g. in NSW - some difference to VIC;

    https://www.theguardian.com/australia-news/2021/sep/22/retir...

    A quality property lawyer would be next stop, it can get really expensive if not done right.

    If your neighbor is going to claim the land I believe they would have to apply under Transfer of Land Act 1958.

    https://www.land.vic.gov.au/__data/assets/word_doc/0030/4709...

    With all fencing disputes Victoria offers free Mediation service before/when resorting to "Notice to Fence" on which I belive is used to claim the Fences Act jurisdiction.

    https://www.disputes.vic.gov.au/information-and-advice/fenci...

    If you never even try mediation then I believe it can hurt you in re: costs if having to go to magistrates etc.

    • +1

      Thanks!

      Sounds like first thing for us to do is get a survey done to show our plan of subdivision is correct. (FYI, I've just downloaded the plan of sub division for the neighbors property and it also shows he's stolen our land, i.e. its not on his title either)

      If we have both plans of subdivision, and a survey to show its our land, surely that's enough for us to simply go ahead with the fence replacement and put the fence back in its rightful spot. Seems he hasn't made a claim to the land (likely doesn't even realise), so surely theres nothing much he could do if/when he does ever return and if he even notices.

      We've been trying to contact the owner regarding the fence for about 5 years now, unsuccessfully, so we've tried mediation.

  • +1

    What you could do is have the property surveyed, then tell your fencing contractors to install the fence on the boundary.
    If the neighbour can prove the fence position for more than the limitation period, then the land is theirs (generally by application to the court, can be administrative after a certain period with sufficient evidence in some jurisdictions).
    However, moving the fence ends the time in which the land is adversely possessed, and a new clock starts to run - one that benefits you.
    If the neighbour is sufficiently lazy you might just get away with it., or if you run out the limitation period for them to make a claim, you win.

    • You got to follow the Fences Act (Victoria) for boundary fencing I believe.

      There is Notice to fence and all prescribed in regulations I believe.

      If you just build it, I believe magistrate just might hold you for damages, make you to remove it and then re-build it all under your cost as well as pay the other party's expensive legal team costs in indemnity basis…?

      http://classic.austlii.edu.au/au/legis/vic/consol_act/fa1968...

      PART 3—PROCEDURES
      12. Owners must not undertake fencing works unless in accordance with an agreement or otherwise in accordance with this Act
      13. Seeking agreement to proposed fencing works under the Act—giving a fencing notice
      PART 4—RESOLVING FENCING DISPUTES
      30C. Orders about fencing works
      30E. Adverse possession claims arising from fencing disputes

      • +1

        Right - but my answer was dependant on the neighbour being too lazy to do anything about it. That includes proceedings under dividing fences legislation.
        Given the OPs description I think it is reasonable to assume the neighbour is not going to go to the Mag Court about this.

        • +2

          Yeah, I don't think they'll even know tbh, they're living in a different country and totally uncontactable. Could be dead for all we know!

  • +1

    Didnt someone else have this issue in recent months.. Did I dream it? Are my dreams that sad?

    • +1

      I seem to recall the same dream

  • +6

    Get a survey. Get a fence installed on the boundary. Deal with unlikely consequences afterwards.

  • Just do it

    Reclaim what is owed.

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