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[@tomic]

I live in a small 4 townhouse strata in inner west Sydney. Behind each townhouse is a small private garden area.

I recently acquired copies of the original DA application made to the local council prior to the townhouses being built and it shows that the garden wall between my townhouse and my neighbour is out of position by approx. 2 metres.

From what I can gather reading through the application papers the builder took possession of the neighbouring townhouse upon completion and simply decided he wanted a bigger garden and so moved the wall.

I double checked against my deed title papers and they show the same anomaly.

Do I have a case here?

I was thinking the next step would be to get some legal opinion from a solicitor and/or ask the strata managers to bring in a surveyor?

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[Jimmy-T]

I would think asking a specialist strata lawyer would be fairly inevitable so you may as well do that now.

The first thing they are going to ask is whether the “private” garden is part of the lot or common property.

If it’s the latter, then the issue is entirely with the Owners Corporation. If it’s the former, then it’s probably a dispute between two neighbours.

By the way, your neighbour – who will undoubtedly be very annoyed – should probably take the matter up with the original builder who sold a property knowing that they had no rights to some of the area that they were selling.

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[@tomic]

I left a message with [one solicitor] but they never returned my call. Although I didn’t go into the details, I got the impression from the receptionist tone that I wasn’t at the top of their call back list. I’m going to give Kerin Benson a try next.

The gardens behind each townhouse is part of the lot.

Unfortunately for my neighbour the builder has since died. 

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[StrataLawyer]

You are correct in relation to the next steps. You will need a surveyor and a strata lawyer.

 Before you start spending funds, a strata lawyer will need to know:

 –When you bought your townhouse

-And have a copy of your contract for the purchase.

The strata plan should set out the boundary of the lot property in a heavy line.  Anything outside that heavy line that is not marked as lot property (that is the unit you and others own) is therefore common property. The lawyer can engage a surveyor to survey the various boundaries between you and your neighbours .  That survey will then be used to compare with the registered strata plan that you were provided by the vendor (who is often the developer) when you bought your townhouse.

You may also need to consider the value of the land that you apparently anticipated being part of your lot, before the developer decided that he needed it more that you did!  You need to be informed about the value of the land taken before you spend money to reclaim the land. You may well have a case for redress, but hasten cautiously and with the right support.

We are happy to advise further. 

 

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[Jimmy-T]

@@tomic said:
I left a message with [one solicitor] but they never returned my call. Although I didn’t go into the details, I got the impression from the receptionist tone that I wasn’t at the top of their call back list. I’m going to give Kerin Benson a try next.
 

Our sponsors, Sachs Gerace are already all over this (see above).  Why not give them a call.

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[@tomic]

Thanks Sachs Gerace.

Before reading your reply I contacted Kerin Benson and the receptionist told me it was $475/hour to have a chat, so I thought it best to get as many ducks in a row as possible before committing that kind of appointment.

To that end I rang the strata management people and they recommended a surveyor.

The surveyor asked me to email him the strata plan and he’d telephone and let me know if it was worth proceeding. It’s the end of the working day here so I don’t expect to hear anything before tomorrow.

I already have all the paperwork you outlined and I will quiz the surveyor as to the lands worth.

If all proceeds and the surveyor does his thing I’ll give you a call and set up an appointment asap.

Once the other owners get wind of the surveyor and that won’t take long since all but 1 of the townhouses have the owners living in situ, I expect a lot of blowback, so I will endeavour to proceed with utmost caution as you council.

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