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  1. #11
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    Apr 2008
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    Default

    I think there's some latin phrase that translates to "he who alleges has to prove". So the burden of proof is usually falls on the person who initiates the legal proceedings.

    There is a procedure in NZ to obtain title to another persons land by, in effect, squatting. But you and your predecessors in title have to squat for at least 30 years (or 20 years if the other person is dead). And I don't think the procedure is available where an apparant boundary fence is not on the title boundary.

    The Fencing Act could be relevant, as it might be argued that the fence is not adequate, given its position. Under that legislation, costs are usually shared between the neighbours.

  2. #12
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    Apr 2008
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  3. #13

    Default Squatting

    Thanks for the link and advice. I presume that for the squating legislation to apply the 20 years of squating must be personal and not through a succession of owners, and that the request to title can be blocked [by caveat] by the title owner. At least that explains the focus on the age of fences in the survey document.

    It would be nice to have such a windfall, but the qualifying circumstances must be as rare as hen's teeth.

    The neighbour doesnt want the land back, just wants to use the issue to control trees growing on our land, as well as the claimed ribbon of land, to provide a sea view. I doubt she can afford any alterations to the fence, or take the surveying much further. I'd rather have her take what's hers and then keep to her side, than give her control of what we do with the rest of our land. Besides, with the mature trees gone she can claim the land and get the best of both worlds.

  4. #14
    Join Date
    Sep 2004
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    Hastings
    Posts
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    Quote Originally Posted by Glen View Post
    Why not just come to an agreement (without the need for solicitors) of each paying half the costs of a surveyor and a fencer, and thus putting the problem right!
    KI - I'll go with Glen on this one. From your
    subsequent comments, it seems that the
    view-blocking trees are the problem; not
    the actual fence line.

    Now I'm re-telling a story here, but it does
    help to reinforce the point that Glen has made.

    Neighbour, over-the-fence, to new, next-door
    land owner:
    You probably don't realise it, but when you
    bought this property, you bought into a years-
    long dispute about the position of this fence.
    New, next-door land owner:
    <looking very surprised>
    It's in the wrong place?
    Neighbour, over-the-fence:
    Yup.
    New, next-door land owner:
    Where should it be?
    Neighbour, over-the-fence:
    About two yards, your way.
    New, next-door land owner:
    <looking aghast>
    That's terrible. Have it moved and send me the bill.
    Neighbour, over-the-fence:
    <looking completely confounded>
    Oh.
    The new, next-door land owner concluded
    the story by saying he was the best-of-
    friends with his new neighbour and the
    fence was still in exactly the same place,
    years later!

    Extrapolating, offer to trim/remove the trees
    and see if that solves the problem. As Glen
    observes, mutual agreements solve heaps
    of problems - real cheap, real quick!

  5. #15
    Join Date
    Jan 2005
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    Default

    Quote Originally Posted by Perry View Post
    KI - I'll go with Glen on this one. From your
    subsequent comments, it seems that the
    view-blocking trees are the problem; not
    the actual fence line.

    Extrapolating, offer to trim/remove the trees
    and see if that solves the problem. As Glen
    observes, mutual agreements solve heaps
    of problems - real cheap, real quick!
    Exactly Perry!

    It's called good communication and commonsense.

    Too many on here rush for the 'rule-book', or look for someone else to blame, pass the buck, deny any/all responsibility, or are just too lazy to make things right.

    Sometimes the easiest way to remedy a problem, is not to argue the point for the sake of arguing, but just meet them halfway.
    Last edited by Perry; 18-05-2008 at 08:17 PM. Reason: general tidy-up of quoted section

  6. #16
    Join Date
    Sep 2004
    Location
    Hastings
    Posts
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    Quote Originally Posted by Glen View Post
    Sometimes the easiest way to remedy a problem,
    is not to argue the point for the sake of arguing,
    but just meet them halfway.
    And - dare I say this - give a little more
    than half, if the issue at stake is really
    a low-grade one, spiked with a bit of pique.

    Then, if all else fails, there is "the rulez."

    Although not quite a legal maxim, I have
    the notion that if one side in a contested
    matters yields/gives a little more than is
    required, the Courts/law will generally take
    that into account in a very favourable way.

    "Walking the extra mile" is an aphorism that
    comes to mind.

  7. #17
    Join Date
    Apr 2008
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    2,086

    Default

    Sounds good to me. (To establish 20 years of squatting, you can rely on periods of squatting by previous owners. But you also have to establish that the owner of the land has effectively abandoned it, which is most unlikely in this case.)

  8. #18
    Join Date
    Dec 2006
    Location
    Manawatu
    Posts
    218

    Default

    Over the years I have seen several cases like this. Particularly in rural sites where the fence was often placed in the most conveinient place and not on the true boundary.
    If a suryeyor has established that the existing fence is in the wrong place that does not change ownership of the land it just means that the fence is in the wrong place. Not a big deal if both parties are aware of it and accept it.

    Problems occur when one party discovers this and springs it on the other who may have established plantings, driveway etc on the land and does not want to lose the use of it. This does not change the fact that the neighbour owns the land and is entitled to do what they wish with it.

    Good communication is the key but if things get rough remember the land owner does have property rights over their land.

  9. #19
    Join Date
    Nov 2005
    Posts
    3,286

    Default

    Give and take fence?

  10. #20
    Join Date
    Apr 2008
    Posts
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    Default

    Agreed: In NZ, the title is everything. The owner is the owner - of all the land delineated in the relevant survey plan.

    This argument really just boils down to the position of the fence, and whether it is an adequate boundary fence.

    I agree with xris re 'give and take': this situation is provided for in the Fencing Act


 

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