Often, neighbouring owners of land may enter into a dispute as to the demarcation of the boundary between the two parcels of land. It is important to take immediate steps to resolve boundary disputes because if an individual has occupied land for a period of time without ejection, a future Court may hold that that person is entitled to an interest in, or that part of the land under the principles of “adverse possession.”
As with many things, there are exceptions to this, but it is prudent to take steps to minimize any liability or risk if you suspect that there may be irregular use or occupation of land, which you claim to be yours. To determine a boundary dispute, a surveyor may need to be employed to take a survey of the land. That survey report is then relied on to make a final determination on the issue or issues in dispute. A law firm can brief a surveyor and it may be possible that any report by a surveyor may be subject to client legal privilege, if that report has been requested by your lawyers in a manner that might attach and preserve client legal privilege to that report.
A common dispute relation to boundaries is the construction of fences between adjoining lots. Ordinarily, the cost of constructing a fence will need to be shared between the owners of the lots that the fence demarcates. This liability may be contained in a document attached to the certificate of title for the land, and that document may be one of the older documents that were created when the land was first registered for title. Alternatively, depending on the circumstances, certain statutory or common law obligations might impose a liability to share half of the cost of the construction of the fence between the owners.
Right of Way and Trespass
Another area of common dispute relates to rights of way and trespasses. The existence of a right, may often be found in documents attached to the certificate of title, usually in documents called easements, positive covenants, or rights of way. A right of way can exist to allow access by way of a thoroughfare, to another property which does not adjoin a road or path, or it can exist to allow some authority to discharge its duties, such as reading a meter or servicing a drain. Easements and rights of ways can also be implied through conduct over time.
Disputes in relation to these matters can be complex and it is advisable to obtain legal representation when dealing with a hostile party.
For more information, see our “Easements and Covenants” section
Trees and Overhanging Building Extensions
Other matters that may arise in relation to boundary disputes can include overhanging trees and building extensions. Disputes relating to overhanging trees are covered by the Trees (Disputes Between Neighbours) Act 2006 (NSW) as well as the common law. These matters will have to be determined on a case by case basis and can also involve complex questions of fact and law. Appropriate legal representation may be necessary to ensure that a party’s rights are not interfered with.
For more information, see our “Encroachment and Overhang” and “Trees and Tree Disputes” sections.
Pipes and Drainage Amenities
Other matters that can fall under boundary disputes may involve questions relating to the position of pipes and drainage amenities. Such matters are particular to each individual case and can only be determined when the facts of the case are fully known. These disputes may also cross-over with questions relating to easements and rights of way. Often, an updated survey or sewerage diagram will need to be obtained before each party’s rights and liabilities are known for certain.
The documentary evidence which will be primarily relevant to any dispute concerning boundaries, will be the certificate of title and its notifications as well as an updated survey report. Comparing these documents can help in creating a chronological narrative of the use of the land, and any changes in its use over time.
Other documents that may be relevant to resolving a dispute relating to the use of land may include planning documents, title plans and old conveyances of the property.
Generally, it is advisable that parties that are involved in boundary disputes retain all documents that relate to the dispute so that all the facts and evidence of each case is available for a final determination. Sometimes expert evidence may need to be adduced to determine a point of fact.
The Certificate of title will not always show all easements and other rights and dealings on the property, as some rights can arise by implication or conduct or by use of the land in a particular manner over time.
If you have unfortunately become involved in a boundary dispute, there will be a variety of important legal considerations that could need to be thought about before a decision is made concerning the progress of your matter
Our property solicitors have been assisting people embroiled in boundary disputes for over a decade and we have the expertise and experience needed to guide you through the complexities of your boundary dispute.
If you would like to discuss your case with a boundary dispute lawyer, you can contact our head office in Sydney to arrange a meeting with a member of our Environmental & Property Law team. We have branch offices conveniently located across the Sydney metropolitan area. For a complete list of these locations please peruse our "Locations" tab above.
This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.
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