WA Neighbour's Retaining wall footings encroachment and Dividing fence encroachment

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Mike15

Member
30 April 2020
1
0
1
Hi Everyone

I am in Perth, WA. I am new in the forum and hope you guys can help me in this unfortunate situation. Thank you in advance.

The issues are the neighbour's Retaining wall footings encroachment and the Dividing fence encroachment.

Summary of facts

1/ In 2013, the neighbour damaged the fibro-cement dividing fence during the construction of his two-storey addition. The original fibro-cement dividing fence was built a long time ago.

2/ In 2015, the neighbour re-erected the new fibro-cement dividing fence without getting the boundary re-establishment survey.

3/ Then, the neighbour constructed an unauthorised retaining wall and a masonry fence along the new fence to restrain his building rubble waste which was placed on top of the natural ground level up to 1 meter high. In fact, the land at its natural state needs no support because the natural ground level between two property is the same. There is a gap of 120 mm between the retaining wall and the new fence.

4/ In 2016 and 2017, my survey recorded that the dividing fence encroached 180 mm and the retaining wall encroached 20 mm. I sent all of my surveys to the Council as proof of the encroachment. There were discrepancies between my survey and the neighbour's survey, the latter recorded that the dividing fence encroached 150 mm and the retaining wall no encroached.

5/ In 2017, The Council investigated the unauthorised structures then approved the neighbour's retrospective building application based on his survey, although I have strongly objected the structures with its encroachment as it was recorded in my survey.

6/ In 2020, my latest survey recorded that the retaining wall and the masonry fence footings encroached 120 mm onto my land.

7/ Complained to the Council but Council said the matter is not within Council's jurisdiction, it was the disputes between the neighbours.

Disputes

The neighbour wants to share 50/50 costs for the realignment of the dividing fence back onto the cadastral boundary line based on his survey and accept no encroachment of the retaining wall and masonry fence. He also wants to change the boundary line on the Langate title certificate based on his survey. He also threatened to counterclaim with the adverse possession if the matter goes to Court.

My questions are:

1/ Is the 50/50 share correct?

2/ What can I do with the encroachment of the retaining wall and masonry fence footings?

3/ What can I do if he wants to change the boundary on the Title Certificate at Landgate.

4/ Whether he would succeed with the adverse possession counterclaim?

5/ Is my case strong if it goes to Court?

6/ Can I reimburse my surveys and other expenses in relation to this matter?

I am old and on the pension, I cannot afford a lawyer or go to Court. Could you guys please help me in this unfortunate situation. I am much appreciated for your help!

Thank you so much for your help and time.

Kind regards

Mike
 

Harry De Elle

Well-Known Member
11 February 2017
63
3
199
Hi M,
  1. If your neighbour can establish exclusive and continuous possession for at least 12 years use of the land then he can file a claim of adverse possession with the Commissioner of titles. I have attached the link at Landgate for your information.
  2. POS-01 Adverse Possession - Landgate
  3. General practice when rebuilding a fence is to keep the starter posts in and use them as the tangible datum for the fence rebuild, it is the status quo. All it does is it identifies the arbitrary title boundary .
  4. If a re establishment survey is done years later it only reflects the original subdivision of the lots when the land was cut up.
  5. You will rarely find domestic fence lines 100% built on the original certificate of title boundaries for various reasons.
  6. I would recommend getting all your evidence together specific to the issue that is in dispute and make an application to the building list of the WACAT and present your case.
  7. Be aware that certain building codes do have tolerances of building structures within title boundaries unless authorised or approved to do so.
  8. You do not need a lawyer to explain what you have just explained to the sitting member in a clear and unambiguous manner.
  9. Tribunals only issue costs orders in rare circumstances and it is unlikely that you will succeed. The exception is if you can demonstrate 'unnecessary disadvantage' that is if the Tribunal's legislation in WA allows for it , and is usually a high bar to meet .
  10. My experience with encroachment issues is consistent with that of the council. They will only assess the build quality. It then becomes a civil matter between neighbours as to where that building should have been sited.
  11. I have seen quotes for adverse possession claims range between $4000 and $16000 for the same job, so depending on what the remedial cost are for your neighbour he might go for adverse possession.
  12. I am still just a little confused on the 120mm encroachment and concerned with the inconsistency of the surveys between the two surveyors.