Property deciding. *dividing. Australia. Do I have to pay for this?

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Customer: Property deciding
JA: What steps have been taken so far? Has any paperwork been prepared or filed?
Customer: *dividing
JA: Where is the property located?
Customer: australia
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Do I have to pay for this?
Answered by John Melis in 44 mins 2 years ago
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John Melis
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John Melis, Expert

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.

Financial separation involves various aspects with alteration of property interests under section 79 of the Family Law Act 1975. Financial separation will usually take into account four facts:

[1] The process will consider the extent of the property of the parties and its value.

[2] The process will consider what contributions have been made by the parties, including direct and indirect contributions of a financial character and non-financial character, and contributions to the welfare of the family, including contributions as homemaker and parent.

[3] The process will consider the circumstances which relate to the present and future needs of the parties and to their means, resources and earning capacity, actual and potential.

[4] The process will consider the effects of points 1 to 3 and resolve what order is just and equitable in all the circumstances of the particular case.

Alteration of property interests between separating couples is an emotional and stressful process and seeking help early is important.

The first step with financial separation is putting together a list of all the assets, and where you are not sure what they are you will need to do a little bit of investigative work to complete list.

Once you have the list ready, the next step is to either commence the process with the forms from the Federal Circuit Court’s website, or with the assistance of a lawyer.

If the financial separation process is done on an amicable basis the matter should be resolved within 3 to 6 months.

The important aspect of the financial separation process is documenting the division of the assets in a binding financial agreement or by consent orders which can be stamped by the court making it a more solid agreement to end the matter.

You have a legal right to protect your interests in this situation.

Please use the following link to assist you with working out how the division of the asset pool is calculated:

http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s79.html

​Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

Customer
I need help with boundary fencing between neighbours
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John Melis, Expert

Which state are you in

Customer
Qld
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John Melis, Expert

Both owners will be responsible for the fencing work, which includes retaining walls which are used as boundary fences, subject to the party who gets the dominant benefit of the retaining wall.

In Queensland, ss 20 and 21 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) obliges owners of adjoining land to generally contribute equally towards the costs of installing or repairing a dividing fence.

In QLD, the owners of adjoining land not divided by an adequate fence may be liable to contribute to the construction, replacement or maintenance of a such a fence. An owner of land who proposes to erect, replace or repair a fence dividing that land from the land of an adjoining owner may serve a notice of that intention on the adjoining owner specifying a proposal for how the work is to be carried out and seeking contribution to the cost. If the adjoining owner objects to the proposal, he or she may serve a cross-notice setting out counter-proposals. If a dispute arises, either party can seek an order from NCAT prescribing the kind of fence to be constructed and the proportions in which the parties are to contribute to its construction,

A person carrying out authorised fencing work may enter upon land at any reasonable time and do anything that may be reasonably required for the purposes of the fencing work.

If the fence line is not straight you may need to have the land surveyed to avoid any loss of your land.

A fence does not just mean a line of posts, wire or panels; rather, it is anything that encloses an area of land—including a ditch, embankment, a hedge or even a creek—and it does not have to extend along the whole boundary. It also includes gates, cattle grids, or anything else that forms part of the enclosure.A dividing fence is normally constructed on the common boundary line between two properties, although it may be built off the boundary line when the physical features of the land prevent it. This, however, has ownership implications.

If it is built on the common boundary line, a dividing fence is owned equally by the adjoining neighbours. However, a fence, or part of a fence, built on one neighbour’s land is owned by that neighbour, even if the other neighbour helped pay for the fence. You should be careful to build your fence on the boundary if you are paying half the cost.

QCAT can help resolve neighbourhood fence disputes—valued up to and including $25,000. QCAT can make a legally enforceable decision on the matter.Going to QCAT should be seen as a last resort. It’s much better if you can resolve the problem together and stay on good terms with your neighbour.

Basic rules for dividing fences

  1. There should be a ‘sufficient’ dividing fence between properties if an adjoining owner requests one—even if one or both pieces of land are empty.
  2. Usually neighbours must contribute equally to the cost of building and maintaining a dividing fence.
  3. You should not attach anything to a dividing fence that could damage it.
  4. In most cases, issues about dividing fences need to be solved by the owners of the properties. If you are a tenant, unless you have a long-term lease on the land, you should refer queries over a dividing fence to the property owner or agent.

What is a sufficient dividing fence

A dividing fence is considered ‘sufficient’ if the fence:

  • is between 0.5 metres and 1.8 metres high
  • is constructed mainly of ‘prescribed material’. This can be:
    • wood, including timber palings and lattice panels
    • chain wire
    • metal panels or rods
    • bricks
    • rendered cement
    • concrete blocks
    • hedge or other barrier made from vegetation
    • other material that fences are ordinarily constructed from
  • can restrain the type of livestock grazed on either neighbours’ adjoining pastoral land.

It is also ‘sufficient’ if you and your neighbour agree it is, or QCAT decides it is sufficient. (QCAT takes into account specific factors such as the types of fences found in the neighbourhood.)To work out what makes a sufficient fence for your circumstances, start with what you need to divide the properties—for example, a short chain wire fence may be decided to be sufficient, but if one owner wants more, then they pay the difference.

Why is a retaining wall not considered a fence?

Retaining walls serve a different purpose than fences. They are engineered to support built up or excavated earth. Retaining walls are not normally a matter of joint responsibility for neighbours because a retaining wall is usually of more benefit to one neighbour.

Are retaining walls covered by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011?

No. Retaining walls are not defined as part of fences because they usually benefit one neighbour more than another, therefore equal contribution is unsuitable. However, QCAT can make orders about carrying out fencing work that includes work on a retaining wall only if the repair of the fence is dependent on the work for the retaining wall.

https://www.legislation.qld.gov.au/view/pdf/2013-04-05/act-2011-025

Would you like to consider this option.

You have a legal right to protect your interests in this important situation.

​Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

Customer
I bought my house about 2 years ago & have now noticed that I have some of my neighbours garden, the builders put the fence in the wrong position, who is responsible for cost to put it where it should have been
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John Melis, Expert

What you can do is to the builders for wrongly putting the fence in the incorrect location. What you should do is issue a notice to the builders come and fix the fence, if they do not fix the fence, raise proceedings in the Queensland civil administrative tribunal

​You can manage this process without a lawyer, in your local tribunal, QCAT.

The QCAT process is very good to meditate disputes of this type as it forces the parties to come together to discuss the issues involved.

In most cases at mediation the matter will settle.

You will be the applicant and the other party the respondent.

The important filing document is the points of claim. This document needs to be carefully drafted.

What you need to do is to write the complaint in a chronological order detailing what is the issue and what action you have taken to try and rectify the matter.

The chronological order need to be numbered with points 1, 2, 3, etc. with each point being a separate item. 

I recommend that you download the application first, complete the same and then upload as required to commence the claim.

The following link will assist you further. 

http://www.qcat.qld.gov.au

Would you like to consider this option.

You have a legal right to protect your interests in this important situation.

This link above will assist you in the requirements to complete the application form and there are various help menus on the website that will also assist you in finalising the application that can be submitted in respect of pursuit of your claim.

Before you submit your application, make sure that you have all your evidence in hand as this will be required at the hearing date and to be served on the other party.

Keep in mind that once you have lodged your application you need to serve the application on the other party once instructed by the tribunal.

Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

Customer
Not sure who the builders were though, it’s a townhouse complex that was built in the early 90’s
Customer
we have only just noticed the error now on the plans
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John Melis, Expert

As the property was built in the 1990s, the builders will no longer be valid in this particular case, so what you can do is have a fencing notice issued to the other neighbour and have the fence repositioned in its correct location.

Customer
Ok so who would have to pay for that
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John Melis, Expert

Did your neighbours would have to share equally on the cost of removing the fence and rebuilding it.

Customer
share the cost of moving the fence with my neighbour even though it’s not our fault
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John Melis, Expert

That is correct unfortunately as an adjoining neighbour neighbours have to share the Boundry fence costs as per the legislation

Customer
Ok Yes I understand that bit but who do we get to remeasure & put it in the correct place according to the plans, I will be losing quite a bit of my garden, so the value of my property will go down, can I claim from someone? as the real estate didn’t even notice it
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John Melis, Expert

What you will need is a surveyor to come out and survey the property set peg marks so that the fence Boundry line can be set correctly, then you'll need a fencing company to come out and relay the fence

Customer
Ok so would we also have to pay for the surveyor? can we claim that cost from anyone
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John Melis, Expert

If you want to get the Boundry fence correct, you'll need to use the surveyor otherwise you can guesstimated where you think the Boundry line should be

Customer
Ok, so could I say no if I didn’t want to change it
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John Melis, Expert

If you don't want to change it, and the other neighbours not making any fuss about it, don't change it.

Customer
My neighbour wants to though as it will give her more garden
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John Melis, Expert

Tell your neighbour to get a surveyors drawing 1st to confirm with the Boundry line is just in case the Boundry line is actually in your favour

Customer
Ok, I can see from the plans that it’s not in my favour
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John Melis, Expert

Plans and a survey is two different things as they Can show different results and you need a surveyors drawing to see what really is that subdivision

Customer
Oh ok thankyou
Customer
everything will have to be at our own cost
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John Melis, Expert

No, you can negotiate with the neighbour and have the cost shared

Customer
Ok thankyou
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John Melis, Expert

You are welcome, and thank you for supporting the community.

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