Disputes with a Neighbour - Part 2
Adverse Possession in the context of a fencing dispute
Australian law inherited the doctrine of adverse possession from English law (Adverse Possession). For many hundreds of years Adverse Possession has been used to resolve land disputes in England. Adverse Possession is still relevant today. As recently as 2002 the Land Registry received approximately 20,000 Applications for Registration of land based on Adverse Possession and 15,000 of the applications were decided in favour of the adverse possessors. In the Applications, over a half of the applicants were squatters.
What is the position in Australia? Are there disputes between two land owners, the non-lawful owner, who will assert a claim in Adverse Possession and the lawful owner, who will dispute the claim and defend the existing lawful possession?
In Australia, the law relating to fencing is state-based law. So too is the law relating to Adverse Possession. In the first part of Disputes with the Neighbour we advised on the fencing dispute and that occasionally a fencing dispute is complicated when a claim is made in Adverse Possession.
This will occur when it is discovered that a fence, which has marked the common boundary between adjoining properties for many years and is now to be replaced, is not precisely on the common boundary of the adjoining properties.
The Fences Act 1968 was intended to limit fencing disputes; however this did not occur. The commentary by a property advisory firm on the effect of the Fences Act 1968 when the Fences Amendment Bill 2013 was being considered by the Victorian Legislative Assembly is
It has been over 40 years since the original Fences Act came into operation. During that time the number of fencing disputes has increased rapidly. The Fences Amendment Bill 2013 attempts to provide this clarity by detailing what constitutes a dividing fence, the responsibilities of land owners and the process of dispute settlement. The aim is to reduce the number of disputes reaching the Courts and to minimise the costs involved to all parties.
The Fences Amendment Act 2014 (FAA 2014), amended the Fences Act 1968 (FA 1968) to introduce the legislative changes set out in clauses 28, 29, 30 and 30 (A), that now apply in cases when the precise location of the common boundary is disputed by the adjoining owners.
The FAA 2014 supplied what was missing in the FA 1968 and introduced a process by which the adjoining owners are able to resolve a dispute on the precise location of the common boundary which has arisen in the context of fencing works (the resolution process).
As is set out in a Fact Sheet on the FAA 2014 provided by the Victorian Government (the Fact Sheet) states in relation to the boundary disputes that “The process [set out in the FAA 2014 meaning the resolution process] is intended to ensure that only one surveyor needs to be engaged in respect to the boundary dispute and to resolve disputes about of costs of the survey”.
In the FA 1968 the descriptions of the adjoining owners are respectively the Notifying Owner and the Adjoining Owner with the following meanings:
Notifying Owner is the person who initiates the resolution process.
Adjoining Owner is the owner of the adjoining land to the land owned by the Notifying Owner and the other person in the resolution process.
The relevant sections are:
In summary section 28 provides for the service of a Boundary Survey Notice by the Notifying Owner. Section 28(1) makes clear the service of the Boundary Survey Notice is where it is necessary “to have the common boundary defined”.
Section 28 (3) provides, by sub-clause (b) that you as the Notifying Owner may serve “A Fencing Notice in respect of the adjoining lands to the adjoining owner at the same time as giving a notice under this section.”
Provides in sub-section (1) the options for the Adjoining Owner to respond to the Boundary Survey Notice.
The options to respond are:
to agree in writing on the position of the common boundary as specified in the Boundary Survey Notice or the Fencing Notice; or
if there is no agreement, the Adjoining Owner “will specify the position that the adjoining owner thinks is the position of the common boundary in writing or by defining the position of the boundary line by marking it [the common boundary] on the ground”; or
engage a licensed surveyor to have the common boundary defined.
The resolution process together with the Commentary makes clear it is intended that it is necessary only for one licensed surveyor to be engaged in the boundary dispute.
It is our view that it follows if there is a recent Plan of Survey (the Survey) of the common boundary, it is not necessary for the Notifying Owner to serve a Boundary Survey Notice requiring the engagement of a licensed surveyor to have the common boundary defined. We suggest the Survey means it is necessary only that the Notifying Owner serves a Fencing Notice and annexes the Survey to the Fencing Notice; this is because the Survey has established the common boundary.
Section 29 (1) of the FA 1968, which provides the three responses by Adjoining Owner, will make clear the terms parameters of the dispute. Service of the Survey by the Notifying Owner will in most disputes lead to a resolution of the dispute:-
(i) 29 (1) (a) if the Adjoining Owner agrees to the position of the common boundary as specified in the Survey, there is no dispute,
(ii) 29 (1) (b) if the Adjoining Owner specifies the position of the common boundary in writing or by marking the position on the ground and the position contradicts the Survey, the Adjoining Owner will need to justify the position he nominates that is clearly in conflict with the Survey,
(iii) 29 (1) (c) if the Adjoining Owner specifies a position of the common boundary different to the Survey, it is necessary that justify the position and the Adjoining Owner will then engage a licensed surveyor to have the common boundary defined and
(iv) By section 29 (2) if the Adjoining Owner has the common boundary defined under subsection (1)(c) by the licensed surveyor the Adjoining Owner has engaged and the Survey agrees with the position as nominated by the Adjoining Owner it is necessary then the Adjoining Owner must serve on the Notifying Owner notice, in writing, of the common boundary as is defined by the Survey provided by the licensed surveyor.
Powers of the Magistrates Court
If the dispute is not resolved amicably by the adjoining owner’s in the resolution process the dispute must proceed to the Magistrates’ Court (the Court). The Orders that may be made by the Court when the fencing dispute is heard and decided by the Court are set out in Section 30C (1) (a) – (m) of the FA 1968.
When a fencing dispute with the further complication that fence to be replaced is not erected on a common boundary that is accepted as correct by both the adjoining owners, the dispute is not always resolved when the common boundary is established by the Survey or the Surveys.
When there is a claim in Adverse Possession one of the adjoining owners will claim it is the position of the fence that correctly determines the common boundary, although that position is in conflict with the Survey or the Surveys.
As is set in the Fact Sheet Adverse Possession may determine the issue in dispute. In a claim in Adverse Possession the rights that have accrued to previous owners will attach to the current owners. As is set out in the Commentary:
Adverse possession law allows a person to claim title to someone else’s land if they have continuously occupied that land for more than 15 years without the owner’s permission. After 15 years, the original owner loses their right to bring an action to recover their land and their title to the land is extinguished.
In Victoria, adverse possession is covered by the Limitation of Actions Act 1958, the Transfer of Land Act 1958 and the common law.
An adverse possession claim may come up in the context of a fencing dispute if a dividing fence has been in the wrong place for more than 15 years. The owner who has gained a strip of land because of the misplaced fence can bring a claim to that land in adverse possession.
The Fences Amendment Act clarifies that the Magistrates’ Court has the power to hear and determine adverse possession claims that arise in the context of fencing disputes, but otherwise the law applying to the adverse possession claim remains the same.
The obvious complication which will apply to both adjoining owners is if there is a lack of conclusive of the date when the fence to be replaced (the fence) was erected in the contentious position. It is the adjoining owner who makes the claim in Adverse Possession, who is required to prove that the fence was erected in its current positon “more than 15 years ago” and, since the date the fence was erected in its current position the adjoining owner who makes the claim in Adverse Possession has used the portion of land in dispute without objection by the lawful owner of the portion of land. If the adjoining owner who makes the claim in Adverse Possession is not able to prove this, he may not be able to resist the demand of the adjoining owner asserting the the common boundary is as is established in the Survey.
The disadvantage in the resolution process established by the FAA 2014 is if the dispute is not resolved by the resolution process, the dispute must proceed to Court and the legal costs to resolve the dispute may be expensive. In an Application to the Court, even though the procedure in the Court is initially to refer the dispute to the Dispute Settlement of Victoria (DSCV) to investigate if the dispute is able to be settled in conciliations, the legal costs to resolve the ownership of a sliver or small portion of land may be expensive.
In addition there will be the inevitable complications and uncertainties that are a characteristic of litigation in these matters when there are often complicated factual disputed issues and it is not straightforward to predict an outcome.
Further, it is by no means certain that, even when one of the adjoining owners is successful that the Court will make an order of costs, certainly not when a settlement is reached in conciliation at the DSCV.
But perhaps the only certainty is with the ever increasing costs of land in Victoria, particularly in metropolitan areas, there will always be the potential for these disputes. And it is essential when a lay person is a party to one of these disputes that legal advice is sought at the earliest opportunity.
If you, or someone you know is experiencing a fencing dispute with a neighbour, please contact our office and we can assist. Simply call us on (03) 9555-7233.
 See Adverse Possession and Title-by-Registration Systems in Australia and England in 2011 Melbourne University Law Review page 773 by Fiona Byrnes, Associate Professor, Sydney Law School of the University of Sydney accessed at http://www.austlii.edu.au/au/journals/MelbULawRw/2011/28.html
 See Blog August – link to article
 See Ownership or Occupation? How adverse possession can impact the value of your assets by Charter Keck Cramer accessed at http://charterkc.com.au/projects/ownership-or-occupation-adverse-possession/
 See Austlii at http://www.austlii.edu.au/au/legis/vic/consol_act/fa196867/
 There will be two Surveys, when the Adjoining Owner does not accept the Survey served by the Notifying Owner is correct and, pursuant to section 29 (1) (c), the Adjoining Owner engages second licensed surveyor
 Fences Amendment Act 2014: Main Changes see paragraph 10 on page 4
 It is emphasised that conclusive evidence is required toi press and succeed in a claim in Adverse Possession
This article provides information that is general in nature and is not a substitute for legal advice.