War of the Worlds

Boundary Fences

No, it’s not the Tom Cruise movie, but real life happenings between neighbours. As surveyors, we see this sort of ‘war’ all the time. Let me explain.

A phone call comes in for a quote for a title re-establishment survey. Go ahead is given and boundaries are marked. However, one side fence is over a title boundary into the property by 150mm. To complicate matters, along this boundary a unit’s garage wall is to be built.

What happens next?

Two months later construction has begun and the fence that’s 150mm out has been pulled down and a new concrete slab has been poured to the original title boundary position.

Result: – War of the worlds.

Fortunately or unfortunately (which way you view it) there are certain pieces of legislation which apply in circumstances such as this.

The idea of possessory rights stems from Common Law Principles from Old English Law.
Certain law statutes exist in the Victorian Legal system which protect the rights of those who may have acquired possessory rights to land which they occupy i.e. have fenced within their property.

The statute applicable is the ‘Limitations of Actions Act 1958’ which determines the time, currently 15 years, from which ‘possessory’ rights have begun. The Act also acknowledges that title to the land being adversely possessed has been extinguished at the end of the 15 year period if any person, namely the owner, has not brought about any action to recover the land. Extinguished in this case effectively means ‘you have lost that part of the land’ to which you had title to. This is further acknowledged in the Transfer of Land Act 1958 under section 42 (2) (b) which provides that for any title of the Register, it “shall be subject to any rights subsisting under any adverse possession of the land”.

Getting back to the war at hand, I can only see 1 practical solution for the owner/developer that has been dispossessed regarding re-asserting your title:-

NEGOTIATE – Approach your neighbour, inform them of the situation and see whether they have a problem with re-instatement of the fence to the ‘correct’ title position. Some form of financial consideration might also be offered as compensation for the loss they are about to incur to encourage them to agree.

Under the current system in the situation described above, the neighbour is in the ‘box seat’ and every effort to acknowledge their rights must be made. Of course challenges as to whether the right has been gained can be made in a court of law, but can be both costly and time consuming. One can only wish for cool heads to prevail and a rational outcome for both parties to be reached before any bloodletting begins. A new hope……..let us pray.

John Podolzak
VICLand Surveying