We purchased our home in Melbourne approximately 2 years ago and we are currently planning to renovate. We paid for a detailed land survey because we are planning to build a garage on the boundary of the property and wanted to ensure the designs are accurate. The survey results informed us that:
- Our neighbour on the side has a brick wall that is encroaching our property by approximately 20cm x 5m (length) x 10cm
- The shared front fence is slightly encroaching our neighbours by 5cm
The previous owner appears to have buil a detached laundry that is attached to the brick wall. The wall itself may be older than 15 years old.
The previous owner sold the property approximately 6 months ago (before we knew about the encroachment).
My preference is to correct the misalignment of boundaries during our renovation, so that it is fair for all parties involved. However I realise that this create stress for our neighbours who have recently purchased and may not know that they are encroaching our land.
My reason for this is because:
- land in inner city Melbourne is very scarce and losing 20cm of width in our future garage would be a noticeable difference.
- we are planning to build a garage wall on the boundary of the property and the neighbours laundry could be supported by this stronger structure instead of the brick wall
- our garage boundary wall may result in some cracking of plaster of the neighbours laundry, as the previous owner mentioned the soil of their property is quite volatile and can move throughout the year. So the laundry may need repairing anyway.
- the neighbours property is comprised of many detached structures and they may plan to renovate sometime in the near future.
My concerns are:
- Proposing that the encroachment be corrected may result in a bad relationship with neighbours. Some people believe "finders keepers" and others continuously try to increase their land size by stretching fence boundaries.
- The wall is potentially over 15 years old, which may open the possibility of the neighbours believing they have a right to claim adverse possession. The legal advice I received before purchasing property was that adverse possession is incredibly difficult to claim for partial encroachment of land and very expensive.
- I estimate the current value of the land to be ~200 smashed avos on toast (based on sale price / land size * encroachment area). The cost of a land surveyor for the neighbours could be $1000-3000, depending on the level of detail they require. The cost to detach the laundry, remove the wall and reattach to our new wall could easily exceed this.
- Doing nothing and changing our boundary wall to build around this 5m encroachment would create a weird internal bracing that may result in reduced strength of the overall structure. If we shift the entire length of the proposed garage wall we would lose 21m x 20cm = 4-5sqm, which is a lot and increases the value of land lost to ~1000 smashed avos on toast.
I've received very mixed advice from friends/colleagues/family and wanted to ask the advice of the OzBargain community. The survey options are based on the responses I've received but I've tried to include diverse options.
Poll options.
- The neighbours are encroaching and it's their responsibility to fix the issue. They should pay to either demolish the structure or rebuild their structure on the correct boundary line.
- We are the party that want the encroachment corrected, we should pay for the cost to correct this.
- The cost should be shared. We are being generous to allow the neighbour to attach their laundry structure to the proposed new wall of our new garage. They could save money using the same builders.
- The boundary should be disputed. The wall could be over 15 years old and the neighbours should pay expensive lawyers to attempt to claim adverse possession.
- Encroachment issues are too complicated. We should forget about the lost land and design our new structure a distance away, even if we lose 5sqm.
- We should sell this 5sqm of lost land to the neighbour, approximately ~1000 smashed avos on toast.
- Another option that hasn't been proposed - leave a comment.
UPDATE:
Some users requested an image to understand the scenario. Below is a link to a quick sketch that I uploaded. Hopefully the scenario makes more sense now.
http://imgur.com/a/nYOmNCs
unfortunately, the next surveyor may say the opposite
.