Dividing Fences/Divided States

By 11 October 2017Property Law

Our firm is based in the beautiful regional cities of Albury and Wodonga – 2 cities, 2 states.

Divided not only by a river, but also by the law.

One aspect of dividing fence law is addressed very differently depending upon which side of the border you own property.

Straight lines exist mostly on maps. It is much harder to keep a line straight on the ground – we live on a curved surface after all! It can be very difficult to achieve straight lines on sloping land, particularly where the slope is variable.

Accordingly most fences are not exactly on the boundary between 2 properties.

Some boundary fences were erected many years ago and not by professionals. Mostly the fence builders have not gone to the trouble and expense of obtaining the assistance of a surveyor.

When you have “good neighbours” a fence which is not exactly on the boundary may not be a problem. But what about when your good neighbour leaves? Your new neighbour may not consider the situation as “give and take” or “live and let live”, but as land theft.

What is “not worth worrying about” is a very flexible concept.

Your new neighbour calls a surveyor in. He uses the latest technology to exactly locate the boundary. It is not exactly where the fence is located and your new neighbour is the “land loser”. Your new neighbour wants the fence moved and you want it to stay where it is.

After you have turned your hoses on each other – who wins?

That may depend upon whether you follow the AFL or the NRL.

The “land loser” will want the fence taken down and re-constructed on the boundary as surveyed.  You, as the “land winner”, want the fence to stay where it is.

You cannot reach a compromise.

The “land loser” relies upon his title. You seek to rely upon the concept of “adverse possession”.

You can make an application for “possessory title” of your new neighbour’s land on your side of the fence if you can prove that the land has been “adversely possessed” for a certain period of uninterrupted, and uncontested possession. To succeed you must prove:

  • Exclusive use and actual possession of the property;
  • Obvious and visible use; and
  • Continuous use.

The period of time which must be proven in New South Wales is not less than 12 years, and in Victoria not less than 15 years.

There is a catch! Here’s where the property location becomes important.  In New South Wales, a claim with respect to “Torrens title” (which is most land) can only be made with respect to a “whole parcel of land” and not part of it (Section 45D Real Property Act 1900). Accordingly a “land win” courtesy of a wavering boundary fence cannot be claimed. There is no such limitation in the state of Victoria.

Therefore:

  • an Albury “land loser” can require that the fence be relocated to the boundary – subject to the obligations of both parties to contribute to the cost of the dividing fence; and
  • a Wodonga “land winner”, if they can meet the elements of an adverse possession claim, can seek to have the fence remain where it is and the boundary change – they can seek an order vesting title to the “land win” in them.

The only relief that an Albury home owner may have available to them is if part of the “fence” is in fact a structure which meets the definition of a “building” within the meaning of the Encroachment of Buildings Act 1922 e.g. a garage.  They might seek an order that the land occupied by the encroaching building be vested in them or some other right allowing the building to remain in its current location, subject to appropriate compensation being paid to the “land loser”.

How to avoid trouble? Have a surveyor locate the boundary before a dividing fence is constructed and have a boundary survey undertaken before purchasing a property.

Too late for that? Talk to your lawyer.