Question: Our body corporate is in a dispute over the boundaries of the common property areas. How do we ascertain the correct boundary between a new owner’s property and the body corporate common area?
A dispute exists between a new owner and the body corporate over the boundaries of the common property area land and the new owners’ land. The new owner disputes the boundaries and maintains that his land is larger than we believe. Unfortunately, the common property area has not been surveyed since the 1990s.
Who is responsible for obtaining the services of a surveyor to ascertain the correct boundary between the new owner’s property and the body corporate common area?
Answer: reading survey plans properly and carefully can sometimes resolve the issue, especially if the reader understands the ‘rules’ for the plan.
Let’s start with the assumption that the ‘new owner’ is the owner of a lot inside the community title scheme. That means we have a potential dispute between a lot owner and the body corporate about who owns what land.
Determining title to land is one dispute that Adjudicators do not have jurisdiction to determine under Chapter 6 of the Body Corporate and Community Management Act 1997. As usual, of course, a rule such as this is often honoured as much in its breach as its observance. Adjudicators routinely ‘find’ where boundaries to lots and common property are so that rights and obligations about the land concerned can then be determined, for example, with respect to maintenance. (To be fair, the learned Adjudicators are finding the boundary, not who owns the land, but it’s a fine distinction).
If the parties to such a dispute don’t obtain their own survey (or explain the existing plan well enough!), then an Adjudicator can require one to be prepared at either or all party’s cost (but in 25 years of practice I have never seen such a request).
If the dispute relates to a fence and the location of the common boundary where that fence is to be located, then section 40 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 can be used to resolve the issue. If neither of those two options is available, then the matter is down to ‘good ‘ole horse trading’; what is fair and appropriate is what is agreed by the parties.
If agreement cannot be reached, the issue is typically resolved when the stakes get high enough at some later stage. The costs of reinstating boundary pegs can pale in comparison to (for example) the cost of drainage or structural maintenance works. Good surveyors will offer different services, with markedly different costs, but in most cases, some very simple services are all that will be required. As a final point, reading survey plans properly and carefully can sometimes resolve the issue, especially if the reader understands the ‘rules’ of the plan. The Registrar of Titles publishes those rules in the form of the Registrar of Titles Directions for the Preparation of Plans.
This post appears in Strata News #688.
Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
Leave a Reply