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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22310
Experience:  37 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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When we bought our house approx 10 years ago we were unaware

Customer Question

Hi.
When we bought our house approx 10 years ago we were unaware that there was a boundary issue. When new owners purchased the neighbouring property they told us about the boundary problem and told us they wanted us to purchase it from them (their boundary goes half way through our house!) We consultated a lawyer who said the owners couldn't make us buy the area of land in question. He wrote them a letter and the matter was dropped.
Several years later and a new owner, with no previous contact, today, we came home to a letter from the new owner telling us that they are going to put a fence up on the boundary and in doing so will pull down the part of our house that is on their property, and that this will happen within 21 days and that they are charging us for the demolition. Attached to the letter is a trespass order for us to stay off the area in question.
Can they actually do this? What can we do? It looks as if our home is about to be pulled down without us being able to do anything about it.
Your advice is very much appreciated.
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

When the boundary encroaches like this you can apply to court to have the title adjusted

322 Certain persons may apply for relief for wrongly placed structure

(1)The following persons may apply to a court for relief, under section 323, for a wrongly placed structure:

(a)the owner, occupier, or mortgagee of, or the holder of any other encumbrance over, the land affected by the wrongly placed structure:

(b)the owner, occupier, or mortgagee of, or the holder of any other encumbrance over, the land intended for the wrongly placed structure:

(c)

any person by whom, or on whose behalf, or in whose interest the wrongly placed structure was placed on or over the land affected:

(d)

any person who has an interest in the wrongly placed structure:

(e)

the relevant territorial authority.

(2)The application may be made whether the wrongly placed structure was placed on or over the land affected—

(a)before or after any boundary of that land or of the land intended for the structure was fixed; or

(b)before or after this Act comes into force.

(3)Unless the court directs otherwise, the application must be served by the applicant on each person who could have made an application under subsection (1).

Expert:  Chris The Lawyer replied 1 year ago.

323 Court may grant relief for wrongly placed structure

(1)A court may grant relief for a wrongly placed structure—

(a)to any person entitled to apply for relief under section 322; or

(b)to any other party to the proceeding for relief.

(2)The court may grant relief if the court considers it is just and equitable in the circumstances that relief should be granted.

Expert:  Chris The Lawyer replied 1 year ago.
may consider in determining application for relief

(1)In determining an application, under section 322, for relief under section 323, the court may have regard to—

(a)the reasons why the wrongly placed structure was placed on or over the land affected; and

(b)the conduct of the parties; and

(c)the extent to which any person has been unjustifiably enriched at the expense of the person seeking relief because the owner of the land affected has become the owner of the wrongly placed structure.

(2)Subsection (1) does not prevent the court from granting relief merely because the person seeking relief knew of the true boundaries or ownership of the land affected at the time that the structure was placed there, or at the time when that person became the owner of, or acquired an estate or interest in, the land affected, the land intended, or the structure.

Expert:  Chris The Lawyer replied 1 year ago.

So the answer is that you need to make an application to court to get this fixed and this will resolve the issue. You will need to consult with your lawyer and you should be able to resolve this without demolition of the house

Customer: replied 1 year ago.
ok thanks for that, it's good to know of that option. Can we do anything to stop them from acting on the trespass notice that we received tonight? It says we aren't allowed on our/their property or face fine or three months in jail. Their letter also said that the work will be done by the 28 august. can we do anything to stop them?
Expert:  Chris The Lawyer replied 1 year ago.

You can get an urgent application into court to protect the position until a decision is made. No police would prosecute a trespass in this situation because of the legal remedies available, and this is a provocative start, which actually will make them look bad before a court. So the next step should be to tell them that you have a remedy and that unless they pull back you will get an injunction to freeze the position until a court can resolve this issue.

Customer: replied 1 year ago.
Thank you. So the trespass notice that was attached to the letter isn't valid? It's signed by the lawyer who wrote the letter and is the director of the company that owns the house. No one handed it to us, it was mailed on Friday.
Expert:  Chris The Lawyer replied 1 year ago.

It is valid but isn't really enforceable, because of the particular circumstances.

Customer: replied 1 year ago.
ok thank you. can you tell me, is it actually possible/legal for them to demolish part of our house? The letter says that everything left in the house will be subject to their disclosure as they choose. it also says that they want the fence put up/house destroyed by the 28 august...it dosent say they want to start doing it on the 28th, they 'need to have it completed by the 28th'
Expert:  Chris The Lawyer replied 1 year ago.

It would be possible, so you need to see a lawyer and get a message that you will seek an injunction to freeze the position, if they don't pull back. And you would get an injunction because of the boundary issue.mthis lawyer is being very aggressive and should have tried negotiating.

Customer: replied 1 year ago.
thank you for your patience and advice, i really appreciate it as i don't fully understand the legal situation of it all. can you tell me please, will we be made to buy the land off them? Our house is really old, was built prior to 1900, and a lot of the boundaries out here are not in alignment with how the houses sit on the land. In fact the neighbours we got the letter from, are in between our house and a house in front of them, and their neighbours boundary goes into their house like ours.
Expert:  Chris The Lawyer replied 1 year ago.

What usually happens is that you would get an easement over the encroachment. If this new owner was sensible he would be talking about this rather than this rather aggressive approach.

Customer: replied 1 year ago.
i don't understand what an easement is sorry
Customer: replied 1 year ago.
sorry, can you explain what an easement is please?
Customer: replied 1 year ago.
Ok, well I'm guessing there must be a limit to the amount of questions I can ask, which I didn't realise, so sorry if I asked too many. I do want you to know that I have really appreciated your help and feel a lot more confident in my situation than I did before I spoke with you.
I did also want to ask if you will be available to talk to again as I have another issue that I would like to discuss at a later date. So if you do get this message would you be able to tell me what other days/times you are online?
Thanks
Expert:  Chris The Lawyer replied 1 year ago.

An easement is where you gain the right to use the encroachment but don't actually own the land. I am online, except when I need to sleep.

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