In response to many requests for advice on boundary disputes we have compiled a set of guidelines but ultimately if the case is unresolved, due to the complexity of the law, you will need to contact a specialist lawyer.
First and foremost with any boundary dispute you need to establish the facts before discussing these with a neighbor to try and resolve the issue amicably or before taking the matter further with legal action.
There are three main types of disputes:
● Encroachment: the main type of Boundary dispute
This is when a neighbor builds a structure (building, shed, garage, landscaping, fence or an addition/improvement to an existing building) that crosses the boundary line of your property. Often the reason for this is poor planning or unclear boundary lines.
In this instance you will need to get a land survey to establish with certainty that encroachment has taken place.
In addition, if it is a building, the local town planning office will hold records of the accepted plans that were drawn by your neighbour for building consent. These records can be made freely available to you. It will be worth checking that firstly the building is within the confines of the plans and secondly that your independent land survey is in agreement with the boundaries as set in the plans.
Use the land survey to try to resolve the issue amicably with your neighbour before taking legal recourse. You need to be sensitive to you and your neighbor's quality of life because after a legal dispute this may be severely impacted.
● Trees : the second type of Boundary dispute
Technically this is still termed as encroachment as above but it does have some unique facets.
Importantly a boundary is three dimensional, it gives you rights to the earth below, such as mineral or oil rights and rights up to the sky. Therefore an over hanging branch is encroachment.
The difficult area here is whether the tree is considered a boundary tree, in which case no one owns exclusive rights to the tree and the neighbors are classed as tenants in common.
● Easements : the third type of Boundary dispute
Easements are legal documents that give access rights to a person who is not the owner of the property. The standard reasons to have an easement is for service companies to gain access to their structures that may cross your property such as electricity pylons, telegraph poles, water and sewage pipes.
Easements are also often used to define the shared use of a drive or a drive that crosses a neighbor's property. In addition to trails and roadways these will be shown in your property title deeds and you will need to refer to these to establish if you have a case for legal action.
As well as the above three main reasons, there can be restrictions on the use of the land or property
A right to legal action can exist if the use of the neighbor's property causes distress to your quality of life, by increased noise levels or too intensive lightening, or if the land is being used outside any covenants or restrictions that applies to your local area, often termed as CC&Rs
Try to resolve the dispute with your neighbor with a meeting and if that fails then you should counsel a lawyer for advice and guidance.
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