The deck dispute hots up.

Breda:
I was simply curious and had to look it up too.
The total absence of seachable ACT Case records on the subject wasn’t particularly helpful for someone with no legl background, but settled on the “I wonder if it is actually illegal, where would such an explicit legal point be made, and where would all laws on the subject derive from” line of logic.

(Yes, I occasionally do things the hard way ) 🙁

Apologies for error re adverse possession on leased land. I knew it didn’t apply in the ACT, and wrongly extrapolated.

In practice, it is rarely enforceable on leased land even in those jurisdictions which allow it, because (i) it is not seen as a remedy for disputes over ‘slivers’ of land (such as the current case) and (ii) the claimant generally has to prove that they have been paying the rates on the land being claimed – which is almost never the case. It tends to crop up on rural properties which are pastoral leases where the boundaries have become blurred over time – but the cocky who has the original lease has usually been paying the rates even if the neighbour’s fence is on his/her leased land.

So, in practice, it is usually not applicable on leased land even if it is technically possible.

Thanks to RA for making me do the refresher course! There is an excellent summary of the current state of the law on AP in Australia here:

http://www.spatial.adelaide.edu.au/SSC2009/papers/Simmons.pdf

Skidbladnir said :

Adverse possession applies to leasehold in other jurisdictions.

However, the reason we don’t have adverse poseession here isn’t due to leasehold conditions, but because we explicitly forbade it in Section 69 of the Land Titles Act of 1925, as a quirk of NSW Law (which didn’t allow it at the time, but now does).

Cheers for that.

Adverse possession applies to leasehold in other jurisdictions.

However, the reason we don’t have adverse poseession here isn’t due to leasehold conditions, but because we explicitly forbade it in Section 69 of the Land Titles Act of 1925, as a quirk of NSW Law (which didn’t allow it at the time, but now does).

Technically, you have a valid complaint and are well within your legal rights to take the appropraite action.

Honestly, however, you are a moron, BJ.

note that a deck built within 1.5m of the boundary is only DA exempt if its finished floor level is less than 0.4m from the finished ground level…

I-filed said :

What sort of a bad neighbour kicks up such a fuss about a deck adjoining a wall with no windows, which will have no impact whatsoever on them! It looks as though the poor neighbour didn’t have room for a deck and snuck a couple of inches onto next door. Should have consulted and reached agreement, but hey, maybe the original complainant is an unreasonable person. Sure looks like it.

I’m with the deck.

What sort of bad neighbour builds on someone’s property without asking ?,

A smartarse im guessing, i’m with the chainsaw option.

Skidbladnir said :

Wow.
Who knew we had an army of amateur lawyers willing to provide legal advice at a moment’s notice?

Without a survey certificate, or a certified re-survey, everything just remains a community guessing game.

Chip71:
Adverse Possession is a nasty piece of work to prove to the satisfaction of an Australian court.
The instances I can find in other states have required a lot more than simple occupation, going as far as requiring right of property, right of possession, actual possession, usage and beyond.
But they still require a qualified survey or sufficient evidence to satisfy officialdom.

Finding something concrete though the ACT Courts (and any overarching ACT or pre-ACT but still enforced Federal legislation that doesn’t simply refer to it as a potential state of property ) is something of a paperchase, so far.

(But then again, my interest is limited)

I think you’ll find adverse possession is not applicable to leased land.

This obviously needs to be decided by the RA JJ&E.

Time for a poll Johnboy?

Adverse possession doesn’t apply to leaseholds. Not an issue.

Chop71 said :

After a few years they will get the land anyways through adverse posession
http://en.wikipedia.org/wiki/Adverse_possession

No adverse possession in the ACT.

BenjaminL said :

Yep, brick eating termites are a huge problem in Canberra…

Alternate solution
http://www.neighborstrap.com/neighbors-revenge-middle-finger-on-the-house

If there are any weepholes in the brickwork, gives any termites direct access to the frame no?

What sort of a bad neighbour kicks up such a fuss about a deck adjoining a wall with no windows, which will have no impact whatsoever on them! It looks as though the poor neighbour didn’t have room for a deck and snuck a couple of inches onto next door. Should have consulted and reached agreement, but hey, maybe the original complainant is an unreasonable person. Sure looks like it.

I’m with the deck.

Wow.
Who knew we had an army of amateur lawyers willing to provide legal advice at a moment’s notice?

Without a survey certificate, or a certified re-survey, everything just remains a community guessing game.

Chip71:
Adverse Possession is a nasty piece of work to prove to the satisfaction of an Australian court.
The instances I can find in other states have required a lot more than simple occupation, going as far as requiring right of property, right of possession, actual possession, usage and beyond.
But they still require a qualified survey or sufficient evidence to satisfy officialdom.

Finding something concrete though the ACT Courts (and any overarching ACT or pre-ACT but still enforced Federal legislation that doesn’t simply refer to it as a potential state of property ) is something of a paperchase, so far.

(But then again, my interest is limited)

Inappropriate said :

georgesgenitals said :

Also, was the wall built right *on* the boundary line, or a few millimetres inside?

If you brighten the image you can see the deck has been built flush up against the other house.

If you do brighten the image it sems to me that the small upright wall off the deck follows the actual fence line (were it there) and there’s a return off it to the house wall – maybe the land being referred to as being grabbed by the neighbour with the deck is that part on the far end of the deck where the fence turns in 2 palings to the house wall and perhaps at this closer end behind the pot plant – that is an issue although arguably who can move down a space 2 palings wide between fence and property? My mother’s house in Bruce, the garage wall exterior forms the property boundary with neighbours in reality, with side gates hung off it both sides (don’t know where the site plans show it) and the fence follows the same line. All this is as so eloquently descibed in pics earlier of the storm/teacup kind.

edlang said :

The deck-builder should claim that the wood attached to the wall is a common fence and that BJ76 should share the cost of it… or, propose that they need to build a proper fence to clearly demarcate the property boundary.

Also, quoted from the ACTPLA document titled “Residental Boundary Fences”:

“1.3.2 Disputes
If neighbours cannot reach an agreement with regard to a fence between
properties, an application can be made to the Small Claims Court for
determination under the Common Boundaries Act, 1981. The Authority is not party
to such actions.”

IMO / IANAL if BJ76 doesn’t agree to install a fence, then they tacitly agree that the wall marks the property boundary and the deck doesn’t extend over that boundary. If they agree to install the fence then… it’ll be the most useless bit of land in the ACT.

Sly… I like it.

The deck-builder should claim that the wood attached to the wall is a common fence and that BJ76 should share the cost of it… or, propose that they need to build a proper fence to clearly demarcate the property boundary.

Also, quoted from the ACTPLA document titled “Residental Boundary Fences”:

“1.3.2 Disputes
If neighbours cannot reach an agreement with regard to a fence between
properties, an application can be made to the Small Claims Court for
determination under the Common Boundaries Act, 1981. The Authority is not party
to such actions.”

IMO / IANAL if BJ76 doesn’t agree to install a fence, then they tacitly agree that the wall marks the property boundary and the deck doesn’t extend over that boundary. If they agree to install the fence then… it’ll be the most useless bit of land in the ACT.

Yep, brick eating termites are a huge problem in Canberra…

Alternate solution
http://www.neighborstrap.com/neighbors-revenge-middle-finger-on-the-house

It’s for a court or mediator to decide ultimately of course.

Precedent though is that if the trespass, in this case the construction of the deck, substantially deprives you of the use of your land, then you have a good chance of having it rectified. Does it substantially deprive you of the “use and enjoyment” of your land?
If you believe it does, then either enter into mediation or take it to court.

Oh boo hoo, someone bought property with a common wall and then complain about encroachment? (And if the wall isn’t common then the fence should have continued along the boundary)
If termites are a real concern then I’d rethink the timber fence at the rear before worrying about that deck.

Anyone else waiting for the next complaint? “My neighbour’s snoring is keeping me awake” or “The smell of their farts is upsetting.” Maybe these sad cases should think about buying property where the block size can’t be measured with a school ruler.

JessP said :

Does the wall on the deck touch the wall of BJ’s house? This does not appear to be a useful piece of land for BJ in any respect. Is this worth the argument?

What does the neighbour say in his defence Johnboy?

You can read the comments as well as I can, the photo’s pretty much all they have to say.

Does the wall on the deck touch the wall of BJ’s house? This does not appear to be a useful piece of land for BJ in any respect. Is this worth the argument?

What does the neighbour say in his defence Johnboy?

It’s interesting as it appears the wall is only back just far enough to fit the eve/guttering within the property boundary.

I wouldn’t be too impressed if my neighbours built a deck in the same way.

*grabs popcorn*

Gungahlin Al said :

All seems pretty clear to me. BJ is concerned that the structure is up against his house, and that is perfectly understandable from a termite prevention perspective. And good on ACTPLA for chiming in and agreeing to re-look at the case. Because it is not that case that all decks are exempt from DA. Check the following extract from their website:

The proposed structure should not adversely affect:
* the structural integrity of any part of the building
* a fire-rated wall, ceiling or floor
* …

As the house is built to the boundary, it will be a fire-rated wall, and therefore building a timber structure up against it would indeed threaten the integrity of that wall.

Have to agree with Al – this is wrong for all sorts of reasons. Just glad it isn’t me with this type of headache.

Gungahlin Al said :

…As the house is built to the boundary, it will be a fire-rated wall, and therefore building a timber structure up against it would indeed threaten the integrity of that wall.

Fire rated means it is better able to withstand a fire, right?

Skidbladnir said :

georgesgenitals said :

Also, was the wall built right *on* the boundary line, or a few millimetres inside?

I’m curious about how that ended up that way too…
Your building design vs execution is allowed a deviation tolerance of ~30cm iirc, but aren’t DA structures meant to be a minimum of 900mm -1500mm from a boundary?(*)

(*): Clueless question. Despite what some of you seem think, I’m neither well-versed in Planning regs, nor have never been involved in building a house.
Older strutures seem to folow the 1500mm, but more recent constructions suggest we use 900mm (eg: Compare Fadden to Watson)…

There are some exceptions that allow building on the boundary. We’re doing to this in the inner north and had to go through neighbour notification and so on to gain approval.

I think in some of the newer suburbs, with smaller blocks, building the garage on the boundary is mandatory. Check out Macgregor West, outer Dunlop, or whatever it’s called for some especially scary examples.

All seems pretty clear to me. BJ is concerned that the structure is up against his house, and that is perfectly understandable from a termite prevention perspective. And good on ACTPLA for chiming in and agreeing to re-look at the case. Because it is not that case that all decks are exempt from DA. Check the following extract from their website:

The proposed structure should not adversely affect:
* the structural integrity of any part of the building
* a fire-rated wall, ceiling or floor
* …

As the house is built to the boundary, it will be a fire-rated wall, and therefore building a timber structure up against it would indeed threaten the integrity of that wall.

Golden-Alpine said :

beejay76, is it really worth the angst? Look around you others have things a lot worse off.

Like your neighbor for instance. The prisoners at Hume have more yard space than they do.

watto23 said :

I can’t see the point of the argument myself. Yes they may have built onto technically your land, but even if they buiult it right to the edge of their land, what where you going to do with that strip. If it was wide enough for say a couple of bikes or something, I’d understand.

Its really not worth the angst. even if you can get the square metre or 2 removed from your place and added to theirs, would it affect your rates?.

I understood the problem was the decking encroaching the termite barrier, not an in-principle argument over territory boundaries – ?

After a few years they will get the land anyways through adverse posession
http://en.wikipedia.org/wiki/Adverse_possession

I can’t see the point of the argument myself. Yes they may have built onto technically your land, but even if they buiult it right to the edge of their land, what where you going to do with that strip. If it was wide enough for say a couple of bikes or something, I’d understand.

Its really not worth the angst. even if you can get the square metre or 2 removed from your place and added to theirs, would it affect your rates?

I’m amazed that we are so desperate for land that people buy these tiny blocks these days. I bought a townhouse in 2001 and people thought I was crazy then, but even I have more space than these new housing blocks….

Well that was anti-climatic.

JB, did the neighbour share their side of the story?

One of our walls is the boundary line with our neighbours. They have a clothesline attached to our wall, perhaps I should be charging them everytime they hang out their washing!

beejay76, is it really worth the angst? Look around you others have things a lot worse off.

georgesgenitals said :

Also, was the wall built right *on* the boundary line, or a few millimetres inside?

If you brighten the image you can see the deck has been built flush up against the other house.

georgesgenitals said :

Also, was the wall built right *on* the boundary line, or a few millimetres inside?

I’m curious about how that ended up that way too…
Your building design vs execution is allowed a deviation tolerance of ~30cm iirc, but aren’t DA structures meant to be a minimum of 900mm -1500mm from a boundary?(*)

(*): Clueless question. Despite what some of you seem think, I’m neither well-versed in Planning regs, nor have never been involved in building a house.
Older strutures seem to folow the 1500mm, but more recent constructions suggest we use 900mm (eg: Compare Fadden to Watson)…

It looks like it is two fence posts out. No wonder ACTPLA weren’t terribly excited about it.

My guess is that the boundary is the white painted wall in the background, leaving about 20cm for the owner to access if required and for air to circulate around his property and dampness to disperse.

They look like vents running up the middle of the brick wall.

The deck builders should have extended the fence down and then build whatever you want, this is way out of line.

Is there any reason why the deck needs that little wooden fence part up against the wall? Surely just removing that part of it would solve the whole problem?

Also, was the wall built right *on* the boundary line, or a few millimetres inside?

Pommy bastard said :

http://www.abc.net.au/storm/monsoon/img/storm1a.jpg

http://cache2.artprintimages.com/p/LRG/8/836/57IY000Z/art-print/barbara-mock-pansy-teacup.jpg

This.

I have to say I thought it was going to be a serious encroachment taking up half of BeeJays front yard.

http://www.shafted.de/public/Ha%20ha%202.jpg

Chop71 said :

This could get so much better…… imagine if you choose to paint your wall say………FLURO PINK

I approve of this idea.

http://www.abc.net.au/storm/monsoon/img/storm1a.jpg

http://cache2.artprintimages.com/p/LRG/8/836/57IY000Z/art-print/barbara-mock-pansy-teacup.jpg

This could get so much better…… imagine if you choose to paint your wall say………FLURO PINK

or just buy the 1 square metre of land

Jesus H. Christ, thats not a backyard, thats a laneway!