Boundary Disputes:

A common dispute relation to boundaries is the construction of fences between adjoining lots. Ordinarily, the cost of constructing a fence will need to be shared between the owners of the lots that the fence demarcates. This liability may be contained in a document attached to the certificate of title for the land, and that document may be one of the older documents that were created when the land was first registered for title.  Alternatively, depending on the circumstances, certain statutory or common law obligations might impose a liability to share half of the cost of the construction of the fence between the owners. 

Another area of common dispute relates to rights of way and trespasses. The existence of a right, may often be found in documents attached to the certificate of title, usually in documents called easements, positive covenants, or rights of way. A right of way can exist to allow access by way of a thoroughfare, to another property which does not adjoin a road or path, or it can exist to allow some authority to discharge its duties, such as reading a meter or servicing a drain. Easements and rights of ways can also be implied through conduct over time.

Disputes in relation to these matters can be complex and it is advisable to obtain legal representation when dealing with a hostile party.

For more information, see our “Easements and Covenants” section

Other matters that may arise in relation to boundary disputes can include overhanging trees and building extensions. Disputes relating to overhanging trees are covered by the Trees (Disputes Between Neighbours) Act 2006 (NSW) as well as the common law. These matters will have to be determined on a case by case basis and can also involve complex questions of fact and law. Appropriate legal representation may be necessary to ensure that a party’s rights are not interfered with.

For more information, see our “Encroachment and Overhang” and “Trees and Tree Disputes” sections. 

Other matters that can fall under boundary disputes may involve questions relating to the position of pipes and drainage amenities. Such matters are particular to each individual case and can only be determined when the facts of the case are fully known. These disputes may also cross-over with questions relating to easements and rights of way. Often, an updated survey or sewerage diagram will need to be obtained before each party’s rights and liabilities are known for certain.

The documentary evidence which will be primarily relevant to any dispute concerning boundaries, will be the certificate of title and its notifications as well as an updated survey report. Comparing these documents can help in creating a chronological narrative of the use of the land, and any changes in its use over time.

Other documents that may be relevant to resolving a dispute relating to the use of land may include planning documents, title plans and old conveyances of the property.

Generally, it is advisable that parties that are involved in boundary disputes retain all documents that relate to the dispute so that all the facts and evidence of each case is available for a final determination. Sometimes expert evidence may need to be adduced to determine a point of fact.

The Certificate of title will not always show all easements and other rights and dealings on the property, as some rights can arise by implication or conduct or by use of the land in a particular manner over time.