VIC Property Law - Moving a Fence to the Right Position?

[Wai]

We are building our house. Our surveyor did a fence survey for us. The report shows the fence between one of our neighbors was built inside our property 20cm all the way. The fence has been there for more then 20 years.

We sent a fencing notice to the neighbor to tell them we will rebuild the fence to the correct boundary line according to the survey report on our cost. 35 days has passed.The neighbor did not make any response.

Can we rebuild the fence onto the correct position?

The neighbor also built some metal poles and mesh just next to the fence and those poles and mesh are also built inside our property. Can we remove those poles and mesh under Property Law? What should we do if they don't allow us to move that poles and mesh?

 

[Clancy]

What state are you in?

For NSW i found this;

Boundaries

 

[Rob Legat - SBPL]

You need to get advice from a property lawyer in Victoria. If the fence has been there for more than 20 years, the neighbour may have gained rights to it under adverse possession laws.

 

[Clancy]

You need to get advice from a property lawyer in Victoria. If the fence has been there for more than 20 years, the neighbour may have gained rights to it under adverse possession laws.

Not according to the article I found

"With Torrens title land, the adverse possession may also have to apply to the whole parcel of land and not part of it (Real Property Act 1900, section 45D). As most land ownership in NSW is Torrens title, this means that in most cases, for example, where a dividing fence is wrongly placed for a number of years, the owner with the benefit of this extra strip of land cannot claim ownership of it under this principle."

Oh i see, there is a little thingy that says their in Victoria

 

[Wai]

Do they need to do any formal legal action to formally get the right on it? They didn't have any objection to the notice we gave them. Thank you.

 

[Clancy]

Mind you, I personally averse possession is one of the stupidest laws I have ever heard of.... I cannot steal a car and keep it in my possession for 12 years and then it magically becomes my property legally, so why should I be able to do the same with land simply because its land? Absurd, absolutely absurd.

 

[Wai]

What state are you in?

For NSW i found this;

Boundaries

Victoria

 

[Rob Legat - SBPL]

Clancy: For what it's worth I agree, but the law is the law.

Wai: I don't practice in Victorian property law, and the laws differ from state to state. You'll need to talk to someone who has experience in your state.

 

[Clancy]

Clancy: For what it's worth I agree, but the law is the law.

Wai: I don't practice in Victorian property law, and the laws differ from state to state. You'll need to talk to someone who has experience in your state.

The law is the law? Well yes, but I would have thought such a basic principle that someone cannot simply take what does not belong to them for nothing would be something law makers had difficulty comprehending? It's really not that complicated, my 5 year old child understands people cannot simply take what does not belong to them, so why is it so hard for law makers?

 

[Rob Legat - SBPL]

Because it's a lot more complicated than that. If you're inclined, do some research on the history of adverse possession.