NSW Fencing order

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Sarah53

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9 July 2024
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Hi All

If there is a fencing order and the property gets sold but the new fence has not been constructed does the new owner have to comply with the fencing order? thanks
 

Tim W

Lawyer
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28 April 2014
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In NSW, a mere agreement does not bind a future buyer.
But an actual Fencing Order... I'd expect the cost to be included in the adjustments.
 

Sarah53

Active Member
9 July 2024
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In NSW, a mere agreement does not bind a future buyer.
But an actual Fencing Order... I'd expect the cost to be included in the adjustments

In NSW, a mere agreement does not bind a future buyer.
But an actual Fencing Order... I'd expect the cost to be included in the adjustments.
Thanks, Tim
The order has not been disclosed in the contract.
Can you explain why it would be adjusted if it doesn't bind on a future buyer and it doesn't get done before settlement?
 

Tim W

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Is it an Order, or a mere agreement between the two neighbours?

Are you the seller?
 

Sarah53

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9 July 2024
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Thanks, Tim
The order has not been disclosed in the contract.
Can you explain why it would be adjusted if it doesn't bind on a future buyer and it doesn't get done before settlement?
Order made at NCAT by consent. I am the adjoining owner.
 

Tim W

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Consent or not, an order is an order.
The parties to the Fencing Order are (presumably) you, and the outgoing landholder/ seller.
The incoming buyer is (presumably) not a party to the Fencing Order.

Your information is (presumably) coming from the incoming landholder/ buyer.
(as in "Oh, no, I don't know anything about that, and I'm not paying...")
That person could be a victim of a fraud on them by the seller.

My suggestion - look into the prospects of enforcement of the order against the outgoing landholder.
That's not likely to be a DIY though.
It might also cost more than the dollar value in dispute.

Everything else is more likely to be dispute between the buyer and seller,
and/or the buyer and whoever did the transfer (a conveyancer?)
 

Sarah53

Active Member
9 July 2024
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Consent or not, an order is an order.
The parties to the Fencing Order are (presumably) you, and the outgoing landholder/ seller.
The incoming buyer is (presumably) not a party to the Fencing Order.

Your information is (presumably) coming from the incoming landholder/ buyer.
(as in "Oh, no, I don't know anything about that, and I'm not paying...")
That person could be a victim of a fraud on them by the seller.

My suggestion - look into the prospects of enforcement of the order against the outgoing landholder.
That's not likely to be a DIY though.
It might also cost more than the dollar value in dispute.

Everything else is more likely to be dispute between the buyer and seller,
and/or the buyer and whoever did the transfer (a conveyancer?)
Thanks for the info.

Prob not worth trying to enforce it.
I guess will have to try and speak to new owners when it sells as i dont see the new fence happening before that.

Ive sighted the contract and no disclosure has been made. It even goes as far as to say “
Has the vendor received any notice, claim or proceedings under the Dividing Fences Act 1991 or the Encroachment of Buildings Act 1992.
and the answer is “vendor is not aware” .
Not sure how the vendor cannot be aware when we were both at court! I guess if the purchaser somehow finds outs (doubt they would) before settlement that their is a order they will have to sort it out between there legal rep and the purchasers legal rep.
 

Atticus

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6 February 2019
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Ive sighted the contract and no disclosure has been made ............I guess if the purchaser somehow finds outs (doubt they would) before settlement that their is a order they will have to sort it out between there legal rep and the purchasers legal rep.
I assume NSW is similar to SA & other states in that a 'Form 1' or similar disclosing encroachments or boundary issues must be declared ...

It appears settlement has not yet taken place?

At this point I would be approaching the real estate agent and informing him that a defective form 1 was issued ... Together with your court order as proof ... A defective form 1 can be a legitimate out for the purchaser before settlement. ... Point being the RE Agent will need to take your case to the vendor who will have to address the issue before any settlement.