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boundary dispute, registered survey plans
Topic: boundary dispute, registered survey plans
Posted: 21/March/2017 at 11:34
Boundary dispute between 2 terrace houses. Who owns the shared walls? How to get an error corrected on the register?
Terraces originally built on same lot in 1850's sharing a rear wall. The lot was later subdivided into 2 lots in early 1900's (property R (residual) and property G (grant)), with the wall continued to be shared. A Survey plan was registered for that purpose but with no cross easements for the shared wall.
Then in 1960's, the granted property G, further subdivided into 2 (GR and GG). A survey plan was registered for that purpose and shows the boundary between R & GR (with one encroachment by R on GR), and rear wall still shared, but with a different description on that wall than the previous registered plan, and still no cross easement.
It has only come to notice in the last 12 months that the boundary between R & G in the first registered plan (early 1900's) still on the record for R, is different to the boundary between R & GR in the 1960's registered plan still on the record for GR.
An architect and surveyor have inspected the boundary between R & GR closely, and noted that in around the 1920's the owner of property R inappropriately built an extended wall and roof upon the external wall of G, becoming a second encroachment of R upon G. This 2nd (major) encroachment was not noticed by the surveyor who conducted the 1960's survey that was registered (the only way to see it is to enter the roof space of G). It is thought that the encroachment fooled the 1960's surveyor into thinking that the encroached upon wall was the wall of R and not of G, and so the boundary was inadvertantly misplaced.
Q - As the NSW LPI has guaranteed titles, is the LPI responsible for ensuring that the discrepancy between boundaries was noticed and not registered in the 1960's, and if so, how does this get rectified?
Q - How does the 2nd major encroachment (which the current owner of R is denying) become registered?
Q - Is the continued shared wall before and after subdivision in the early 1900's a wheeldon v BUrrows example of an intended implied easement?
NB. This problem has already cost me tens of $1000's at the L & E court over a council matter (which I won unrep)! But there are still these anomalies that need to be corrected. Any ideas are greatly appreciated!
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