Many individuals do not consider getting a Survey Completed of a property they are interested in buying as an important thing to undertake. Quite often the planning certificate shows a boundary that at face value appears to align to the boundary fence physically located on the property, however the reality is some times very different.
People often purchase property in good faith assuming that fences have been constructed as per the boundary of the property and purchased the property valuated against the size of the land outlined on the plan. Problems however can arise after purchase for individuals who do not get a survey completed of the property prior to settlement.
As is often the case for properties located in older suburbs, fences have fallen down and been rebuilt often without a survey. As older homes are demolished and replaced with newly built homes and or structures, often the fences come down to ensure machinery and materials can be delivered on and off the site only to have fences later replaced that are not aligned to the property boundary.
Some individuals with comprehension of the laws of adverse possession will seize upon an opportunity to install a boundary fence in their favour by positioning the boundary fence off the boundary and in turn giving them access to the neighbours land without the neighbours knowledge or permission. Once a period of fifteen years has passed pursuant to section 30E Fences Act 1968, the current title holder has now surrendered their right to that land and the title holder for who has possession of the strip of land may have rights to claim Adverse Possession.
The current title holder need not show that there has been an express assignment of their possessory rights if they have not been the registered title holder for the entirety of the 15 years, but the aggregate period of possession between them and their predecessor in title is 15 or more years (Shelmerdine and Another v Ringen Pty Ltd and Another  1 VR 315).
Before signing a contract of sale, McDonald Bolog encourage all of our clients to have a survey completed of the property to ensure the fences are aligned to the boundary. Having the fences not aligned to the boundary may not be an issue, but if it is determined that the age of the fence exceeds fifteen years and that prior title holders were not aware that the fence position had granted the neighbour unrestricted access to the land without consent of the owner, you may not be actually purchasing the size of a block you think you are, or if the boundary fence is misplaced in your favour, you may have possessory rights of more land than is shown on the title.
Want to know more?
If you would like further information on adverse possession please contact Daniel McDonald on (03) 8398 0820 for a free thirty minute consultation.
About the author
Daniel McDonald is a Practicing Lawyer and Managing Director of McDonald Legal. Daniel practises in the area of Commercial, Property and Employment Law drawing upon vast experience working as a CEO, CFO and COO in previous roles. Daniel holds a 5 Star MBA from the University of South Australia and a Juris Doctor (Master of Laws) from the Royal Melbourne Institute of Technology.