Neighbor’s Renovation: Can They Replace Our Fence with a Garage Wall? (Melbourne)

I'm looking for some advice and general guidance on a property boundary issue.

My neighbor is planning to renovate his property, and everything is still in the planning and design phase.

The houses don’t align perfectly with the boundary on the title, and I technically encroach on their side. This has been the case for as long as I’ve owned my home (20 years). Over time, the common paling fence has effectively become the recognized property boundary, which I believe is a common situation in the area.

As part of the renovation, my neighbor wants to build a garage up to this existing boundary. However, to do so, he intends to remove a 7-meter section of the fence and replace it with the brick wall of his garage—meaning his garage wall would effectively become my new fence.

This raises some legal and practical concerns about property boundaries and ownership responsibilities. While I have no issue with him building up to the fence, I don’t understand why it needs to be removed, considering I co-own it. I don’t believe it can just be taken down without my agreement.

I'm not concerned about aesthetics, and I genuinely want to work with my neighbor on this. However, I do have concerns about the implications of these changes. I'd appreciate any thoughts, advice, or suggestions.

Thanks!

DBR

closed Comments

  • +48

    I don't see what the problem is.

    • +12

      Exactly…..

      Garages can be built up to and used as the bounday line.
      As long as the gutter does not encroach into OPs property.

      • +7

        As long as the contract says zero lot boundary, depending on states.

    • +5

      I'm not concerned about aesthetics

      This is the only consideration I could think of, if it isn't a consideration then good to go.

      • +4

        I read it that OP is concerned they build on his land, just as his house was built on theirs
        .

  • +27

    Sounds like the fence is on their property in the first place. You can move or build a new fence behind their brick wall if you like.

      • +3

        like a treaty?

        • +1

          DMZ?

      • +25

        I have yet to see an adverse possession case over boundaries where it was able to be rectified stand up in court.

        You should also note you dont get the claimed land for naught - you have to compensate at current market rate. In my area, thats $2500/sqm min

      • +3

        Don't you as a homeowner have a duty to perform an accurate survey too?

        • +6

          Wow the only comment so far mentioning a SURVEYOR.

          First you need to engage in one to properly define where the fence should be (it should sit on the property boundary).

          If the fence has sagged / moved and the neighbour is indeed building on your lot there are serious implications and a world of pain for both parties.

          Get a surveyor in and fix the fence first before the neighbour starts the build.

          Anything after that is a council / building code problem.

      • +15

        Don't you have to actually legally pursue the claim once you've occupied it for the required period? Have you done that?

      • +1

        Until something like this occurs.

      • +11

        Good luck with that. Unless you have gone through the process of having it recognised on the title, it is always going to be up for challenge.

        I’d probably be grateful the neighbour doesn’t want to claim their actual land.

        It could be they just want to remove the fence to make the construction easier - which is certainly something that affects you and should be discussed and managed to your satisfaction. You could always put the fence back if you wanted.

      • +15

        Unless you've gone through the legalities and the courts you don't have adverse possession. You just have the right to claim adverse possession.

        Your neighbour can take their land back or you can compensate them for their loss.

        They can build their garage wall up to the boundary but can't encroach with guttering or downpipes.

      • +17

        You have legal concerns about a garage wall on the property line but no concerns about taking land that isn’t yours…

      • +11

        Have you been reading Putin's playbook?

      • +3

        @BrantRaven you are going to be disappointed. Adverse possession is not that trivial. For instance, the law will take into account whether you have say, paid for the excess land on your council rates for the past 15 years, it will also look at whether your fence line cuts through easements which many Victorian blocks have at the rear of the block about 2-4m off the back fence etc. Importantly, you cant actually take possession until you have applied via Land Victoria who will then notify your neighbour of your intent.

        • wow interesting, a lot of people must think like OP, since i've been here I've often heard you just need to hold onto it for x amount of years, which made me wonder why you wouldnt just go out in the middle of nowhere and claim a bunch of land

      • Geez, why would you quote a ancient legal principle that promotes stealing land from the original owners of the land, especially in Australia where there been enough pain over land being stolen in this country. Even if its legal its unethical, do not go there dude. It has nothing to do with your question either.

      • Oh, you make it sound so easy…

        To legally prove adverse possession, and obtain a consolidated title most often it is not worth the cost.

  • +13

    Can They Replace Our Fence with a Garage Wall?

    Yes.

  • +14

    I'm looking for some advice and general guidance on a property boundary issue.

    Speak to someone at your council.

    If in doubt, engage a property lawyer.

    • +8

      Sound advice from JV! What's the special occasion? :-)

      • +3

        What's the special occasion?

        Footy season has started… and Carlton had an embarrassing loss…

  • -3

    Absolute zero boundary is what he's on about. The rest of the fence will butt up to the front and back of his dwelling.
    I'd be interested in fire ratings if it could effect your property in the event that embers could spread to an older home as yours if something happened from his side.

    • +3

      I'd be interested in fire ratings

      Why would it matter to the OP if you were interested in them?

      • +1

        He might be offering to pay for this fire rating!

      • He is the neighbour.

    • they would build it in brick most likely, other materials would be used if the properties were attached so no fire rating concerns.

  • +10

    Providing they have approval and it meets planning regulations, they can do what they like including rectify any boundary discrepancies.

    Obviously it's at no cost to you.

    • Actually if they wish to rectify the boundary and it is found the boundary is indeed incorrect it is not at no cost to them.

      • +2

        Yeah look it depends. We just did 4 (2 blocks spanning 4 adjoining blocks) and the nightmare to get surveyors and then multiple owners to come to an agreement was just beyond painful.

        In the end, we sucked it up and paid for the fencing and retaining walls to be moved even though none was our doing. Total cost - around $20k for 50m

        Sure, we could have pushed it to court and Im sure we'd have got at least 50%. But factor in capacity to pay, time loss on projects etc.

        Hence why, I think the incoming neighbour is likely to just correct and build without slugging the OP.

        OP should be mindful - sometimes it's best just to smile and let sleeping dogs lie. Especially if you're encroaching.

        • +1

          The OP is talking about trying it on with adverse possession despite not being entitled to that, if I was the neighbour that alone would make me take it all the way to court before I let it lie.

          • @gromit: I wouldn't stand for it either.

            OP kicking a hornets nest tbh

  • If it’s been over 15 years, you can lodge an adverse possession claim for the small bit of land where the fence has been in the incorrect position

    But to answer your question, yes the neighbour can

  • +14

    Yes they can. Don't be a Karen causing them headaches for no reason.

  • +6

    Yes
    You sound like a resident of Brunswick

  • I also have a fence question.

    There is a tiny, 90cm high metal and wire fence along part of the boundary between our house and the neighbour. Technically, it is on their side because the posts are in their concrete. We wish to replace it with a 180cm pine fence on our side for privacy. We plan to pay for it ourselves, and we're not sure whether to ask the neighbours for permission, because we don't want them to offer to pay for it or to feel awkward because we're paying for it.

    • +22

      Go around with a cake and sit down and discuss it with them. It is better to be open about what you are doing. It could get a lot more awkward if the neighbour comes up part way through the build and asks you what you are up to.

      • Go around with a cake and sit down and discuss it with them.

        What should they discuss about the cake???

        • +1

          How to cut it and if he wants cream with it.

        • An alternative to bread.

    • and we're not sure whether to ask the neighbours for permission

      If you are building it on the boundary, you both need to agree…

      If you are putting it up only on your property, maybe not. Check with your council, the bylaws can be different in each municipality…

    • "Dear neighbour, I want to build this really cool fence on my property at absolutely no cost to you, are you good with that?"

    • not how it works, you need to communicate that your installing a fence, get 3 quotes, offer for them to pay their share, if they decline you can still get it done but you need to communicate what your doing not suprise them one day with tradies working on their property concreting and working.

      If your doing boundary work usually there are risks associated with. e..g lets say you are removing the old fence and replacing it, what if they have a pet and it escapes and gets killed because you had the old fence down all day, or the fence is left down overnight and their house gets broken into by an intruder going through the gap you made in their property boundary. The key is to communicate and make sure your neigbour is onboard. If they are a holes and don't want you doing anything you drop the quotes / papers in their mail box, given them time to respond then go ahead anyway. All fencing tradies know the process so one of them will explain it once you get your three quotes.

  • +10

    Haha, you encroach on their land and you are worried they are going to find out!

    The simplest solution is to let them do what they want, so they don't have to investigate boundaries :P

    You start arguing, they start investigating their options …

      • +14

        You should familiarise yourself with the outcomes of most of the adverse possession cases gone to court ;)

        At bare minimum, the OP is up for lots of $$$, even if they win the adverse possession case …

      • can

      • +1

        You should familiarise yourself with adverse possession laws. The land can now be owned by OP

        Not by adverse possession for the next 25 odd years. Neighbour just interrupted OP's continuous possession without interference before OP made his claim.

  • +10

    OK, you're not concerned about aesthetics and have no issue with your neighbour building up to the fence. Neighbour isn't taking issue with you encroaching on their property.

    So, what is the problem?

    • +4

      Seems like OP misunderstood adverse possession laws and wanted to have land for free.

    • +3

      So, what is the problem?

      The fence is in the wrong spot and they have had 'free' land all these years that might disappear!

  • +1

    Will you be granting them access to your property to complete the works or are you happy looking at an unfinished brick wall?

  • +3

    However, I do have concerns about the implications of these changes

    And what are they? Have you discussed this with your neighbour to come to a mutual understanding?

  • Call the council

    • Council will do f*** all because it is a private fencing / land boundary dispute.

      Unless it is a permit or building code violation, which isn't the case.

  • My neighbours did it, I don’t mind it because I can’t see it (behind trees) but they did fence - garage wall - fence. The fence needed replacing anyway, so this way saved a bit of cash

  • +9

    Brick wall garage for the fence will last considerably longer than a pailing fence also fantastic to kick a ball against or hit a tennis ball.

    Would be nice though for it to be a couple inches more on their side though so gutter is not on your side.

  • +3

    I've seen this done where the party in the OPs position were able to get the facing bricks changed to match their house - so it looks nicer for them. You definitely have the right to request some accommodations on your part, as there is no real legal problem with replacing the fence with a wall, providing nothing protrudes over the common boundary.

    The Neighbor is responsible for rectifying any property damage (lawn, flowers, etc). And there will be a mess while they construct the foundations and wall, but afterward instead of owning half a fence (imagine a line down the middle of a paling fence) the OP will have an extra few cm of space up to the boundary.

    You could also use this as a trigger to fix the fence to the correct property boundaries - and head off any future legal troubles

  • +2

    OP is like a resident living in Balwyn, complaining to Council about Toyota Camry 'abandoned' (aka parked!) on their street.

    • Oh man you joke but it's real. Not Balwyn but close, I once parked on a residential street to access the sports park as the area was full. Came back 3 hours later and there 5 people standing around my car, didn't pick up their conversation but you knew it was passive aggressiveness to move it.

      It was a clean coupe, beautiful thing no one would have issues normally, but yeah there it is, in front of their house so it's their 'property' time to get the neighbours gawking at the riff raff as well.

  • +2

    How far is the existing fence inside their boundary? What concerns do you have exactly about the implications? Is it just that youre worried the neighbour is reclaiming part of their property?

  • OP do you want half the fence that has been taken down? Or is it the principle?

    <sounds like the latter to me>

    • +2

      I think it's "the vibe".

      • The ghetto vibe?

        • It's Mabo, it's the vibe

  • +1

    I technically encroach on their side. This has been the case for as long as I’ve owned my home (20 years).

    I don't think time justifies ownership.

  • Is there a statutory requirement to separate the minimum distance between the 2 properties to avoid fire transfer?

    Also, I believe there is a minimum 1 meter separation from the fence to the wall or additional fire rating needs to improve if the separation is less.

  • Yes they can. I had exactly the same situation when my neighbour (who I am on very good terms with) knocked down and rebuilt.

    They agreed to keep the rest of the fence (which was still on their side of the property line) until it needs to be replaced down the track

  • +3

    Give your council a call, some planning laws requires no buildings X meters from the boundary (except the fence of course).

  • +3

    As part of the renovation, my neighbor wants to build a garage up to this existing boundary. However, to do so, he intends to remove a 7-meter section of the fence and replace it with the brick wall of his garage—meaning his garage wall would effectively become my new fence.

    That's how it is is done when you build a garage on the boundary.

    This raises some legal and practical concerns about property boundaries and ownership responsibilities. While I have no issue with him building up to the fence, I don’t understand why it needs to be removed, considering I co-own it. I don’t believe it can just be taken down without my agreement.

    As they are building ON the boundary, with the fence being also on boundary, it needs to be removed.

    I'm not concerned about aesthetics, and I genuinely want to work with my neighbor on this. However, I do have concerns about the implications of these changes.

    What are you concerned about then if it isn't aesthetics?

    Are you worried it will be realigned to the REAL boundary and you'll lose land?

  • +1

    Neighbour's wall right against the property boundary?
    What's the problem? I like to be able to stick my hand out the window and shake hands with the neighbours. Don't you?

  • What's then issue? A garage wall is more durable than a fence long-term.

    However, I do have concerns about the implications of these changes

    Is this a bot? Or did you just get ChatGPT to draft the post for you?

    Nobody uses the em dash (—) in random forum posts ;)

    • You're grandma and writing style is to gooderer than mine. You must be bot.

  • +2

    It's really difficult to understand what the actual issue is here, given OP has "no issue with [the neighbour] building up to the fence" and "not concerned about aesthetics, and [they] genuinely want to work with [their] neighbor on this".

    OP … have you actually articulated specific concerns/questions and spoken to your neighbour (or anyone else) about them? If you want to work with your neighbour on this, then do exactly that … don't state you have unspecified "concerns" about what they are doing that is simply going to lead to delays and frustrations.

    If you express these concerns early, clearly, and genuinely a reasonable neighbour will work with you to have them addressed. But the bottom line is that they are ultimately entitled to do whatever the relevant laws/regulations allow them to do.

    • +2

      It's really difficult to understand what the actual issue is here

      If you read between the lines, the OP told you what the issue was, it was this

      The houses don’t align perfectly with the boundary on the title, and I technically encroach on their side

      So basically if they build on the REAL boundary, the OP will be losing land they encroached on at some point in time.

      • Ah, so this is a land grab?

  • Ask this question on Whirlpool Forums au, they have conveyencers and legal quite often. Apologeez ozbargain but its true.

    • Well, they certainly have posters claiming to be lawyers and conveyancers. They would be foolish to be giving real legal advice based on the scant details in this question.

  • +2

    meaning his garage wall would effectively become my new fence.

    Which is on HIS LAND. You've said it yourself, the fence is on his property, not at the boundary, so if he builds the garage to that existing line, it's on his property.

    What am I missing here? He's not building it to the official boundary. you're just wanting to maintain having more property than you actually own.

    • He's not building it to the official boundary

      I believe the thought will be they will build to the LEGAL boundary line when they do this. The OP said they encroach on their side, so will lose land.

  • I believe they can with council approval (and new garage wall should be now more than an average height of 3.2m).

  • +1

    Saves replacing that 7m section of fence in future.

    • OP wants land 🤪

      • How much land are we talking?

        20cm?

        • +1

          20cm over the depth of a standard block is squillions in todays market. Can probably fit a 1 bedder granny flat in there.

        • 20cm x 7m by the looks of it. 1.4sqm. Can range from $500-$1m 😆

  • What is the problem here? As long as they have the permits around what they want to do, they an do anything they want to do. The fence is supposed to be sitting on the boundary line of properties and when a garage or wall is built, it sits on the boundary meaning the shared fence has to be removed anyway. You can ask the builder or removalist to leave behind the fencing materials if you want to use it for anything else, or perhaps rebuild the fence on your side of the property after all the construction works and temporary fencing has been removed.

  • +1

    OP starts off on the right track by referring to adverse possession. It is true he can claim adverse possession after 15 years.

    However, adverse possession isn't just a matter of planting a flag and staking your claim, you need to raise the issue before the courts.

    In this case, the OP has missed his opportunity to claim adverse possession as the neighbour has initiated the claim to regain his property before OP made their claim so the required 15 years of uninterrupted use of the property (20 in the case of Op) has expired and resets.

    For a chance at success, OP needed to make his legal claim for the property before his neighbour decided he wanted it back. Neighbour wins because he has made his intentions to reclaim his land before OP commenced his legal proceedures to award him ownership.

    For owner to take possession of his land, he has to make an announcement to the world at large (the building approval satisfies this) and take steps to secure the land - which building a brick wall on its boundary certainly satisfies. But a letter box serves this purpose for front boundaries.

    • 👏

    • OP needed to make his legal claim for the property before his neighbour decided he wanted it back

      Legal or not, it is pretty much a d1ck move to do this if you know the fence is in the wrong spot.

  • Let us get this right:

    1) technically the "boundary fence" AKA paling fence is on his side of the property right? so its not quite the boundary fence. In theory he has the rights to remove it whenever he wants.

    2) If 1) is true, then the brick wall that he wants to build up to the boundary should be acceptable as long as its within the build limits (AKA cant be too high, gutter encroaching, etc). Out of courtesy, he should socialise the design with you and make sure the boundary line is clear before build.

    3) also seems like he is happy to eat up all the cost, i.e. cost of taking the paling down and building the brick wall / garage.

    Does that make you feel better?

    • Good point. If the fence is on his property he doesn't need your permission to do anything with it except return whatever your stake in ownership is (I'm presuming half?)

      If he wants to build a fence on the legal boundary, you do get a say in this as part of it will likely be on your property.

      Neighbour needs to get three quotes and present them to you along with fencing notification.

      Note, you are only on the hook for half of whatever the minimum legal requirement for that boundary. If neighbour wants anything over and above this, he has to pay the extra.

      Sorry OP, but you're about to get a new fence section and you're going to have to move anything of yours that encroaches neighbour's property back over onto your property.

      Note, neighbour only has to reimburse you for damage to your property if it's on your side of the boundary. Any costs you accrue for relocating anything of yours from his side within your boundary is at your cost. Eg establishing garden edging or whatever.

      Also note, it is likely this new wall won't sit flush on the boundary to allow for gutters etc so there will be a strip of his land beside your land. That's still his land, don't go building any permanent structures on it incase he wants to use it at some point. It's still not your land.

    • he should socialise the design

      Now that's thinking outside the box. I think your comment is really going to move the needle and help OP create synergies. You should touch base with OP to see if he captured that low-hanging fruit.

  • Pls provide your neighbour’s contact details. Would whisper about your plans to do the things right. Get his whole legal land back from you.

  • +1

    and I technically encroach on their side.

    How do you technically encroach his boundary?

    The boundary is a line. You're either over it or you're not.

    Over time, the common paling fence has effectively become the recognized property boundary, which I believe is a common situation in the area.

    You're about to find out that this isn't the legal boundary though.

    However, to do so, he intends to remove a 7-meter section of the fence and replace it with the brick wall of his garage—meaning his garage wall would effectively become my new fence.

    If he has the relevant approvals for zero lot boundary, he gets to do this as long as he sticks to his side of the boundary and does not encroach on yours.

    You now have a 7m section of fencing that will last far longer than any other fence you could build for free and all on someone else's land.

    This raises some legal and practical concerns about property boundaries and ownership responsibilities.

    If you dispute the property boundary, engage a surveyor to establish what the current legal boundaries are. Hint, just because you currently have possession of that land, doesn't mean you get to keep it unless authorised by court regardless of whatever private agreements exist.

    Transfer of property ownership can only be done in writing. Court process will facilitate this if applicable.

    While I have no issue with him building up to the fence, I don’t understand why it needs to be removed, considering I co-own it.

    He wants to build on his boundary. At least part of the fence is on his side of the boundary so it needs to be removed so he can use his property.

    He will be reinstating a fence on his side of the boundary from which you will benefit but don't have to pay for.

    If you want your half of the fence back, ask for it soon in case they dispose of it before they know you want it.

    I don’t believe it can just be taken down without my agreement.

    You are about to be disappointed, but why wouldn't you agree anyway?

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