Commercial law, litigation, contracts, IP, property law
If they damaged the fence during construction of the house they are responsible for repairing or replacing it. If the old fence was incorrectly aligned they should make the replacement fence on the correct alignment.
I suggest you server them with a notice to repair or replace the fence that was damaged during construction. And see what happens.
It may be that they deny the replacement is due to damage but rather it is due to the incorrect alignment, if that argument is successful you will be up for half the costs. Perhaps you should take a complete set of photos now so that if they deny your notice to repair or replace, you can show the court the state of the fence that has caused you to issue the notice.
Act quickly before they get in first.
There seems to be 2 issues, 1 who pays and secondly where does the fence go. Martin O has offered an opinion on 1, and i will offer an opinion on 2
Go and engage a local surveyor who will be able to tell you by marking on the ground the location of the dividing boundary. Generally, fencing approximates boundaries, but is not the boundary. Ask the surveyor to give you offsets from structures on the property (or to place them but not paint) in case the marks are removed. He should give you a report as well and disclose if there are any problems in the survey.
That will answer the question of where, and disclose if other buildings are built too close or over boundaries. Once you know where you can then determine costs, and you may be up for 1/2 each given the age of the previous fence.
We had contacted a surveyor, it cost $600 and the surveyor identified that our old fence is incorrect and the new boundary is the same as what the neighbour and their surveyor claimed. But it's not our fault that the old fence is incorrect, we bought the house just over 20 years ago and the fence outlining the boundary since then is still up till today, half of it anyways. I just wanted to know if there is a way not to be punished for a previous mistake which will consequently result in the removal of our garage as the new boundary is too close to it.
And yes Martin O, we have taken many photos of the fence and the construction process which led to the damage of the fence and have acted but the council won't listen. We are definitely NOT paying for the fence. We would pay half the costs to the construction of a new fence if we were informed before the construction of their dwelling than notified on the week they intend to construct the fence however we have been able to temporarily stop them from building the fence for a month or two now.
Thanks for the advice "Martin O" and "Land Surveyor".
This is not a legal answer but I had a neighbour that had the same issue as you.
The matter went to court and the magistrate ruled that as the garage had been constructed years ago and even if there was a mistake in boundries by the surveyors, the effect was that was impractical to ask the owner to demolish a dwelling for this type of error.
So the status quo remained.
The boundary is where it is and there is little dispute to that it appears. In NSW there is the encroachment of buildings act which may be useful for you. There is probably similar legislation in other jurisdictions.
Just because the fence is old does not mean that you own the land, up to the fence,(unless you hold it under old system title) and in some ways calls to the heart of Buyer beware.
The neighbour may wish you to remove the garage if it encroaches but this would be extreme, and he would probably need to get a court order. If you are worried (and i wouldnt be unless your neighbour really hates you), see your lawyer about the encroachment and the act i referred to above.
As an alternative your neighbour will know of the encroachment already, and may be in a position to grant you an easement at your cost to allow the garage or overhang to remain. This will fix the problem, but i would suggest you will owe half the fence cost.