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The deck dispute hots up.

johnboy 27 April 2011 55

offending deck

It started out simply enough.

“beejay76” started asking about what could be done about a neighbour building a deck out onto what was claimed to be their land.

For those who don’t follow the comments section closely the drama then unfolded.

Somewhat surprisingly the ACT Planning and Land Authority jumped into the discussion offering to help.

And despite numerous entreaties beejay76 refused to post pictures of the offending deck.

Then, just when it couldn’t get any better the neighbour weighed in, posting the above picture of their deck.

It’s brutal out in the new suburbs.


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55 Responses to The deck dispute hots up.
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00davist 00davist 5:03 pm 31 Aug 11

Inappropriate said :

georgesgenitals said :

Also, was the wall built right *on* the boundary line, or a few millimetres inside?

If you brighten the image you can see the deck has been built flush up against the other house.

Yep, Your right there mate, paints a bit of a different picture too!

[IMG]http://i52.tinypic.com/xf18ok.jpg[/IMG]

Try This

http://tinypic.com/view.php?pic=xf18ok&s=7

Madashell Madashell 12:53 pm 05 May 11

I don’t think I have ever used the expression “Get a life!” before but I have never come acoss anyone with a more pressing need.

My view is that your neighbours have just;
1 Saved you a whole lot of weeding/poisoning for the rest of your life.
2 Built you a beautiful fence for free.
3 Improved the ambiance of the locality.

If I were you BJ I’d get down on my hands and knees and beg your neighbour’s forgiveness – end of story!

colourful sydney racing identity colourful sydney racing identity 9:24 am 05 May 11

Special G said :

Just looked at the photo again. It appears when building the deck he just extended the fence a little to cover the garage wall.

Agree with this.

shadow boxer said :

I find it absolutely astounding anyone could defend the neighbours gall in doing this without even dropping over with a bottle of red and discussing it.

Whilst I don’t think it demonstrates the neighbours ‘gall’ I agree with this on principle – do it as a courtesy and save a whole lot of drama

georgesgenitals georgesgenitals 9:05 am 05 May 11

shadow boxer said :

…without even dropping over with a bottle of red and discussing it.

Which would probably have headed off the whole argument in the first place.

shadow boxer shadow boxer 8:38 am 05 May 11

No he’s not, there are a lot of these buildings in Gungahlin, they are technically townhouses but they are built with a small separation to avoid the problens associated with a “common wall” such as noise, vibration and maintenance.

It would be cheaper just to have the common wall but no-one really does that any more unless it’s a unit.

Given that concept room needs to be left for air to circulate, guttering and moisture to disipate.

I find it absolutely astounding anyone could defend the neighbours gall in doing this without even dropping over with a bottle of red and discussing it.

Special G Special G 8:20 am 05 May 11

Just looked at the photo again. It appears when building the deck he just extended the fence a little to cover the garage wall.

Send BJ a bill for half the fence costs.

Homeless Homeless 9:03 pm 04 May 11

ConanOfCooma said :

Technically, you have a valid complaint and are well within your legal rights to take the appropraite action.

Honestly, however, you are a moron, BJ.

+1

Best summation I have seen of this whole debarcle.

KCL KCL 4:59 pm 04 May 11

Captain RAAF said :

KCL said :

perhaps you can swap neighbours with captainraaf !!!!!

That’s a good idea, though mine may be getting their act together after being ‘worded up’ by the Dept. One car has been towed away and today was a hive of activity as several bogans worked feverishly to get cars running and tidy up the yard. I think they’ve been given a date to get things in order…..i’d still prefer a neighbour who built a pergola against my fence though.

“Here,Here”

Captain RAAF Captain RAAF 10:12 pm 30 Apr 11

KCL said :

perhaps you can swap neighbours with captainraaf !!!!!

That’s a good idea, though mine may be getting their act together after being ‘worded up’ by the Dept. One car has been towed away and today was a hive of activity as several bogans worked feverishly to get cars running and tidy up the yard. I think they’ve been given a date to get things in order…..i’d still prefer a neighbour who built a pergola against my fence though.

KCL KCL 7:09 pm 30 Apr 11

perhaps you can swap neighbours with captainraaf !!!!!

Skidbladnir Skidbladnir 12:28 pm 28 Apr 11

Breda:
I was simply curious and had to look it up too.
The total absence of seachable ACT Case records on the subject wasn’t particularly helpful for someone with no legl background, but settled on the “I wonder if it is actually illegal, where would such an explicit legal point be made, and where would all laws on the subject derive from” line of logic.

(Yes, I occasionally do things the hard way ) 🙁

breda breda 11:32 am 28 Apr 11

Apologies for error re adverse possession on leased land. I knew it didn’t apply in the ACT, and wrongly extrapolated.

In practice, it is rarely enforceable on leased land even in those jurisdictions which allow it, because (i) it is not seen as a remedy for disputes over ‘slivers’ of land (such as the current case) and (ii) the claimant generally has to prove that they have been paying the rates on the land being claimed – which is almost never the case. It tends to crop up on rural properties which are pastoral leases where the boundaries have become blurred over time – but the cocky who has the original lease has usually been paying the rates even if the neighbour’s fence is on his/her leased land.

So, in practice, it is usually not applicable on leased land even if it is technically possible.

Thanks to RA for making me do the refresher course! There is an excellent summary of the current state of the law on AP in Australia here:

http://www.spatial.adelaide.edu.au/SSC2009/papers/Simmons.pdf

georgesgenitals georgesgenitals 10:03 am 28 Apr 11

Skidbladnir said :

Adverse possession applies to leasehold in other jurisdictions.

However, the reason we don’t have adverse poseession here isn’t due to leasehold conditions, but because we explicitly forbade it in Section 69 of the Land Titles Act of 1925, as a quirk of NSW Law (which didn’t allow it at the time, but now does).

Cheers for that.

Skidbladnir Skidbladnir 9:48 am 28 Apr 11

Adverse possession applies to leasehold in other jurisdictions.

However, the reason we don’t have adverse poseession here isn’t due to leasehold conditions, but because we explicitly forbade it in Section 69 of the Land Titles Act of 1925, as a quirk of NSW Law (which didn’t allow it at the time, but now does).

ConanOfCooma ConanOfCooma 9:38 am 28 Apr 11

Technically, you have a valid complaint and are well within your legal rights to take the appropraite action.

Honestly, however, you are a moron, BJ.

ma7trlb ma7trlb 8:31 am 28 Apr 11

note that a deck built within 1.5m of the boundary is only DA exempt if its finished floor level is less than 0.4m from the finished ground level…

shadow boxer shadow boxer 8:06 am 28 Apr 11

I-filed said :

What sort of a bad neighbour kicks up such a fuss about a deck adjoining a wall with no windows, which will have no impact whatsoever on them! It looks as though the poor neighbour didn’t have room for a deck and snuck a couple of inches onto next door. Should have consulted and reached agreement, but hey, maybe the original complainant is an unreasonable person. Sure looks like it.

I’m with the deck.

What sort of bad neighbour builds on someone’s property without asking ?,

A smartarse im guessing, i’m with the chainsaw option.

georgesgenitals georgesgenitals 7:45 am 28 Apr 11

Skidbladnir said :

Wow.
Who knew we had an army of amateur lawyers willing to provide legal advice at a moment’s notice?

Without a survey certificate, or a certified re-survey, everything just remains a community guessing game.

Chip71:
Adverse Possession is a nasty piece of work to prove to the satisfaction of an Australian court.
The instances I can find in other states have required a lot more than simple occupation, going as far as requiring right of property, right of possession, actual possession, usage and beyond.
But they still require a qualified survey or sufficient evidence to satisfy officialdom.

Finding something concrete though the ACT Courts (and any overarching ACT or pre-ACT but still enforced Federal legislation that doesn’t simply refer to it as a potential state of property ) is something of a paperchase, so far.

(But then again, my interest is limited)

I think you’ll find adverse possession is not applicable to leased land.

Lazy I Lazy I 11:07 pm 27 Apr 11

This obviously needs to be decided by the RA JJ&E.

Time for a poll Johnboy?

breda breda 10:37 pm 27 Apr 11

Adverse possession doesn’t apply to leaseholds. Not an issue.

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