Garage demolition and encroachment issue

[swillisam]

I’m hoping someone has gone through a similar situation and can provide advice.

Essentially, I want to demolish and rebuild my garage due to existing structural issues. My neighbour’s garage encroaches onto my garage and is using my southern wall as a party wall. My neighbour is refusing to discuss design, costs, issues and is ignoring the encroachment. His view is that I need to pay for everything and can’t impact his garage in any way which I don’t think is fair. Keen to hear thoughts on legalities and rights, ownership and equitable cost split etc.

Below is a summary of the situation:

• Survey shows the southern wall (party wall) is on my land, also logically makes sense due to time of construction, materials used etc (also shows the fence is 300mm within my land along the boundary)
• Neighbours roof encroaches the southern wall and relies on it for their northern wall
• No legal easement, nothing on either title, no references to an agreement on any of the original plans when the garages were built (more than 50 years old)
• Both bought each property with garages already there
• My northern wall has structural issues that need addressing
• Neighbours garage has decaying concrete, roof is partially rusting, joists are rotten, northern joist is bolted to my southern wall and the neighbour doesn’t want to do any work to resolve these issues. Any work that I do has much greater risk of something going wrong because of this
• I need to demolish at least some of my garage to resolve my structural issues and would be prudent to demolish the whole garage given it’s an old brick garage. Trying to retain what is there is only a temporary fix, will be a poor structural and aesthetic outcome and the issue of the encroachment remains (basically it's a lipstick on a pig solution)
• Neighbour has room to build a wall inside his garage to hold up his roof (have suggested this so it becomes two independent garages)
• Neighbour is ignoring encroachment, cost discussion (have not suggest cost split details but to hold a discussion to what is fair), will not meet face to face etc

What do you think?

[AlFa]

I see no reason you can't demolish the structure on your piece of land. You don't even need a building consent for it as of recently. You know where's your boundary so knock down whatever is on your side.

[RollingCloud]

Encroachment. Try to discuss. If not good then letter advising what you intend to do, options for working together, or he needs to remove his encroachment. If ignored, threat of court then court, costly but last option. Some legal advice along the way would be good to make sure you have the correct procedure and if they are open to working together that an agreement is put in place, or an easement, your solicitor will give you other options for possession.
Refer sections 321-325 Property Law Act 2007. Wrongly placed structures.

[artemis]

Would the Fencing Act apply? Since if you demolish what is on your property there will be no boundary 'fence'.

If so, that is a relatively cheap and straightforward issue to resolve via a fencing notice and if necessary the Disputes Tribunal.

The fencing notice could specify that structures on your side of the boundary are to be demolished, and the neighbour is given notice to pay for half the cost of a standard fence on the boundary following demolition.

ETA Would next door's consent be needed for a new garage? That could complicate the process.

[RollingCloud]

The Fencing Act can only address the building of a new fence and not that of the intended removal of the wrongly placed structure. The property law act would still have to be followed in this instance.

[artemis]

The Fencing Act can only address the building of a new fence and not that of the intended removal of the wrongly placed structure. The property law act would still have to be followed in this instance.

I realise that but the garage owner can remove structures on their own property. Can't they? So the fencing notice can just say - I'm removing a structure from my property and following that there will be no boundary fence, so here's the fencing notice. And by the way I'm telling you about the removal of a structure on MY property so you are aware.

[RollingCloud]

And are you 100% sure you know where your boundary is before you do (survey pegs)? Situations like this can get volatile and escalate quicky. I'd be a bit apprehensive going in gung ho.

[AlFa]

And are you 100% sure you know where your boundary is before you do (survey pegs)? Situations like this can get volatile and escalate quicky. I'd be a bit apprehensive going in gung ho.

I believe topic starter mentioned survey specifically.
"...

• Survey shows the southern wall (party wall) is on my land, also logically makes sense due to time of construction, materials used etc (also shows the fence is 300mm within my land along the boundary

..."

[RollingCloud]

Depends if 'survey' refers to a 'survey plan' or a later survey undertaken to confirm current pegs or replace missing pegs. I never assume.

[GLin]

What does your lawyer say?

Having dealt with retaining wall ownership in my previous career as a civil engineer in council, I would say, from a not legal expert point of view:
1) whatever is on your side of the boundary is yours, you can do whatever you want, except
2) except not compromise or make any structure collapse or destabilise the land on your neighbours property

I suggest you get some legal advice.

[Meehole]

Lawyer is going to cover his butt before yours so flag him. Demolish your share of the garages and if that involves the party wall which is on your side so be it. It can be held up in place with accrows!

[John the builder]

if the situtaion has continued for more than 20 years then the encroachment becomes enshrined? The wall must be a party wall that had approval from previous owners.

have you consider leaving the wall for him and rebuilding a new wall inside the old one for you?

You lose the land but save the legal costs?

[Meehole]

Perhaps someone from Christchurch will have an answer for this one. We experienced many occasions while working down there post earthquake whereby a party wall was shared between 2 garages (as well as houses). Sometimes a previous owner had a verbal agreement with the neighbour and then as the years passed and the properties changed hands that agreement was forgotten.
It would be just as hard to prove an approval as it would to disapprove one after 20 years.

[SimonW]

Perhaps someone from Christchurch will have an answer for this one. We experienced many occasions while working down there post earthquake whereby a party wall was shared between 2 garages (as well as houses). Sometimes a previous owner had a verbal agreement with the neighbour and then as the years passed and the properties changed hands that agreement was forgotten.
It would be just as hard to prove an approval as it would to disapprove one after 20 years.

I don't have an answer, but I do have a similar situation made different due to a decent neighbour. I have a 1960's concrete block garage hard up on my side boundary which I assume was built first. The neighbouring property's concrete block garage was presumably built after. One side wall of their garage actually belongs to me - ie their garage essentially just added to the existing structure. The "party wall" isn't that at all - it is my wall that their garage is held up by on one side.
I recently got EQC to reassess my garage after previous inadequate earthquake repairs. The reassessment resulted in my garage being deemed a total loss and EQC paid me out for a full knockdown/rebuild. However if I demolish my garage, the neighbour's garage will most likely fall down.
I spoke to my neighbour about this, and as a result, he has had to get his own EQC claim reopened and reassessed. Fortunately, common sense has prevailed and EQC has now also paid him out for a full rebuild after months of deliberation.
Going forward, after our garages are demolished, we will each build our own lightweight steel clad garage 300mm off the boundary line, and will erect a fence between them.

I guess I am lucky to have a neighbour who was actually willing to engage, but he is getting a shiny new garage that he would otherwise not have got, so that possibly provided some motivation. It could have easily have gone the other way and I could have ended up in the same position as the OP.

Speaking of the OP, has there been any update on your situation @swillisam?

[John the builder]

I don't have an answer, but I do have a similar situation made different due to a decent neighbour. I have a 1960's concrete block garage hard up on my side boundary which I assume was built first. The neighbouring property's concrete block garage was presumably built after. One side wall of their garage actually belongs to me - ie their garage essentially just added to the existing structure. The "party wall" isn't that at all - it is my wall that their garage is held up by on one side.
I recently got EQC to reassess my garage after previous inadequate earthquake repairs. The reassessment resulted in my garage being deemed a total loss and EQC paid me out for a full knockdown/rebuild. However if I demolish my garage, the neighbour's garage will most likely fall down.
I spoke to my neighbour about this, and as a result, he has had to get his own EQC claim reopened and reassessed. Fortunately, common sense has prevailed and EQC has now also paid him out for a full rebuild after months of deliberation.
Going forward, after our garages are demolished, we will each build our own lightweight steel clad garage 300mm off the boundary line, and will erect a fence between them.

I guess I am lucky to have a neighbour who was actually willing to engage, but he is getting a shiny new garage that he would otherwise not have got, so that possibly provided some motivation. It could have easily have gone the other way and I could have ended up in the same position as the OP.

Speaking of the OP, has there been any update on your situation @swillisam?

so 600mm of land will be lost forever plus the cost of two walls (instead of one) and a fence? (how do you you build a fence in a 600 space?) Why not put up a party wall or even retain the existing wall?

this is simply good economics?