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Daniel
Daniel, Solicitor
Category: Australia Law
Satisfied Customers: 5771
Experience:  Bachelor of Laws (dist) Graduate Diploma in Legal Practise. Admitted NSW Supreme Court / High Court
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Am about to build a new house on my lot in Cairnlea, Victoria.

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Am about to build a new house on my lot in Cairnlea, Victoria. When I purchased the lot 4 yrs ago, the fence in question was already there and has been for about 10 years. Recent survey found that it is 150mm inside my lot. I notified the neighbor to remove it, but they did nothing. I excercised "self-help" and started taking it down. They called police. The constable said I had to get a court order; if not they'd arrested me for destroying others' property. I have previously checked on various VIC gov websites, they all said "Sometimes "self-help" removal of the fence is permitted". I need to relocate the fence quickly to start building. What need I do? Pls do not advise me to "work it out" directly with the neighbor. There is just too much animosity it's hopeless.
Hello

You are best to file an application to the magistrates court a fencing dispute.

http://www.magistratescourt.vic.gov.au/jurisdictions/civil/fencing-disputes

I would not suggest breaking down the fence, it will cause more issue with these idiots.

Once an order is made, the fence can be removed and they can pay for half the cost of a new fence.

Please accept
Customer: replied 4 years ago.

Hello Daniel: Just before receiving your answer, I called the Magistrate Court, and they'd send me the forms & brochure. A follow-up question: the neighbor also have the end of a shed, a wall and concrete pavements intruding into/onto my lot. Can I get the Court order to have these removed in the same filing as the fence?

Hello

With the shed, it does not form part of a fence, so it may not be considered sadly.

I would use it as leverage, but that is a matter for another application in regard to removal, unless you can prove to the court it forms part of a boundary, ie a wall of the shed forms part of the fence so to speak.

Please accept.
Customer: replied 4 years ago.

The rear wall of the shed, the end of a frontal wall, and the concrete pavement all extend into my lot and blocking the relocation of the fence, i.e they must be moved back or cut back before the fence can be set up at the boundary. Does this seem justification enough to include in the same filing?

Hello

In that circumstance, yes it should be part of the same application.

Please accept
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Customer: replied 4 years ago.

Just have to ask you this. When I bought my lot, I became the owner of any structure attached on it as well. Does it not mean I own the fence that's entirely inside my lot? If so, how could the police arrest me if I take down my own property?

Hello

it is not your property per se as it is a dividing fence, just in the wrong position.

It is different to some other fixture etc.
Customer: replied 4 years ago.

Hello Daniel: Applying for an order with the Magistrate Court means at best a 3-month delay of my house building. It costs me nearly $2K each month delayed. I've started to weigh the option of taking down the fence ourselves. What kind of issues will this cause? The sergeant I spoke to has started to back away from his claim that I may face arrest in doing so. He suggested that if my solicitor finds legal supports for me taking down the fence, the Police would not get involve.

If you have the evidence then it is a defense, you do have an arguable case regardless.

But again it is the risk you take.