WA Western Australia Encroachment caveat

[Charles Glenoran]

My neighbour erected a fence which encroaches on my property. I objected at the time, but he refused to remove the fence, claiming that it was on the correct boundary. This boundary has subsequently been re-surveyed, and the results support my assertion. The neighbour's property has now been placed on the market, and I am concerned that any new owner will inadvertently inherit this dispute. Does this situation constitute a "caveatable interest".

 

[Rod]

Not really. You are not claiming his property, you simply disputing the boundary. You can pull down the fence that is on your property and have it put on the correct property line.

How much land are we talking about?

 

[Charles Glenoran]

Not really. You are not claiming his property, you simply disputing the boundary. You can pull down the fence that is on your property and have it put on the correct property line.

How much land are we talking about?

You are correct that I am not claiming the neighbour's property. I am simply seeking to ensure that potential purchasers are aware of the issue (ie "caveat emptor"). I also agree that I am entitled to relocate the fence, but my preference is to avoid spending time and money to remedy somebody else's actions. The amount of land is only a few square metres, but it is significant in terms of the impact on the value of my land, which I am advised is likely to be developed when I sell it.

 

[Rod]

I am simply seeking to ensure that potential purchasers are aware of the issue

Incorrect placement of a fence does not give you a right to place a caveat.

If the other owner is not playing ball, have you considered placing a large sign in your front yard proclaiming a disputed boundary?

And write (pref by registered letter) to the council and estate agents notifying them of a disputed boundary. Not sure of the law in WA, I'm in Vic, but here a vendors statement section 32 needs to be given to all prospective purchasers and if the council issues a disputed fencing notice it may need to be included in the Vendors statement. By notifying the estate agent if a buyer asks them specific questions they need to answer properly or they can be liable for misrepresentations.

 

[Charles Glenoran]

Incorrect placement of a fence does not give you a right to place a caveat.

If the other owner is not playing ball, have you considered placing a large sign in your front yard proclaiming a disputed boundary?

And write (pref by registered letter) to the council and estate agents notifying them of a disputed boundary. Not sure of the law in WA, I'm in Vic, but here a vendors statement section 32 needs to be given to all prospective purchasers and if the council issues a disputed fencing notice it may need to be included in the Vendors statement. By notifying the estate agent if a buyer asks them specific questions they need to answer properly or they can be liable for misrepresentations.

Thanks for that advice. Local Government authorities in WA avoid boundary fence disputes (like the plague). I have advised the real estate agent of the dispute, although I am unclear whether this imposes an obligation on them to advise potential purchasers.

 

[Rod]

re: Council. Think they are the same everywhere. All you can do is try.

re: Estate agent. Quite likely, though it doesn't help you directly. It may give a purchaser a cause of action against the real estate agent, not you. I'd be making sure I sent a letter via registered post though and not rely on a phone call or one email to an agent.