Property disputes can arise in a variety of contexts and in relation to various kinds of property. This determines both the applicable legislation and the avenues available to resolve a property dispute.  The highly experienced property dispute lawyers at Brander Smith McKnight can help you to resolve your property dispute.

It is helpful to group the different types of property disputes in the following categories:

1. Neighbourhood property disputes which includes disputes over trees, easements, fencing and retaining walls.
2. Property disputes between individuals who own property together, for example forced sale.
3. Family property disputes following the breakdown of a marriage or de facto relationship
4. Construction work property disputes such as easements, encroachment and access for workers
5. Property disputes concerning off the plan purchases

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Neighbourhood Property Disputes

There are many issues between neighbours that create the basis for a neighbourhood property dispute.  As a result of this there are multiple pieces of legislation relevant to different problems. BSM property lawyers Sydney are able to provide expert and detailed advice on these areas of legislation, which include:

Disputes over Trees

Trees and hedges can be the cause of disputes between neighbours.  Neighbours can unfortunately sometimes use trees as a means of antagonising their neighbour.  Common causes for tree and hedge disputes include where a neighbour’s tree or hedge obstruct a neighbour’s view or sunlight, cause property damage or threaten people’s safety.  In NSW, disputes between neighbours relating to trees and hedges are governed by the Trees (Disputes between Neighbours) Act 2006 (NSW).  The effected neighbour may apply to the court for an order to have the trees trimmed or removed to remedy the obstruction.  Prior to this act, neighbourhood disputes relating to trees were resolved under common law principles of trespass, negligence and nuisance.

Disputes over the granting of Easements

An easement is a right attached to a piece of land which bestows upon the owner or occupant rights over another piece of land.  The rights conferred by easements common.  Commonly this right interferes with the normal rights of the owner or occupier of the other piece of land.  An example of an easement is a shared driveway which allows residents access to their homes by crossing the property of their neighbours. The Conveyancing Act, Section 88k 1919 (NSW) allows that a property owner can be forced to provide an easement to their neighbour if it is reasonably necessary for effective development.  An example of this would be the granting of an easement for the laying power cables to the neighbour.

Disputes over Fencing

Fencing disputes in NSW are governed under the Dividing Fences Act 1991 (NSW).  Under the act, a dividing fence is defined as “a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary”.  The legislation provides an effective framework to resolve disputes.  For instance, it defines the responsibility of property owners in contributing to the construction or maintenance of a dividing fence.

Disputes over Retaining Walls

Retaining wall structures have the principal function of holding up the ground in a structurally satisfactory manner.  In some instances, retaining walls are considered to be fences and neighbour disputes are covered by the Dividing Fences Act 1991 (NSW).  For example, a retaining wall may be considered a dividing fence where it functionally supports a fences fence posts. On the other hand property disputes regarding defects, construction and maintenance of retaining walls are governed by the Home Building Act 1989 (NSW) and the Environmental Planning and Assessment Act 1979 (NSW).

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Disputes when there is an accusation of Nuisance

Nuisance in relation to neighbourhood disputes refers to when there is an interference with the use and enjoyment of land.  For example, a nuisance may occur when someone has caused persistent and excessive noise that impacts a neighbour.  Some legal remedies available in a nuisance claim includes damages and an injunction.

Disputes when there is an accusation of Trespass

Trespass in the context of neighbourhood property disputes refers to the interference of another person’s property without any legal justification.  For example, trespass may occur where a person is using part of a neighbour’s property as a thoroughfare.  Some legal remedies that may be available in a trespass claim include damages and injunctions.  In addition, there are various statutory penalties that apply when people trespass upon other people’s land.  For instance, the Inclosed Lands Protection Act 1901 (NSW) applies to a person entering land which is wholly or partly surrounded by a fence, wall or other erection

Encroachment of Buildings

Encroachment is the crossing over or intrusion onto a neighbour’s land by a building or structure.  This may be either above or below the ground.  The relevant legislation that deals with this is the Encroachment of Buildings Act 1922 (NSW).  Possible solutions to this dispute may include compensation, the transfer or granting of land right to the encroaching owner and the removal of the encroachment.

How can BSM Lawyers assist with Neighbourhood Property Disputes?

The property dispute lawyers at Brander Smith McKnight are very knowledgeable and have extensive experience with this very common property dispute.  They are expert negotiators and pride themselves on providing a premium service that will save you money and time.  The overwhelming majority of our disputes are settled with negotiation with the opposing lawyer or client.

Knowledge of Relevant Legislation

The BSM property dispute lawyers Sydney can outline the various pieces of legislation relevant to the dispute and advise you of your legal rights and obligations. As discussed above, examples of this include Dividing Fences Act 1961 (NSW), Conveyancing Act 1919 (NSW) and Trees (Disputes between Neighbours) Act 2006 (NSW).  Our property lawyers will interpret the sometimes difficult to understand legislation and effectively advocate for you.

The use of Alternative Dispute Resolution techniques

The property lawyers at Brander Smith McKnight are able to settle most property disputes by negotiation.  This involves listening and then carefully developing a negotiating strategy best suited to your dispute.  The method of negotiation may involve correspondence, providing offers of settlement or meetings which may include lawyers and clients.

Other alternative dispute resolution options are mediation and conciliation where an independent person, called a mediator or conciliator respectively, facilitates discussion between disputing parties.  A conciliator plays a more advisory role than a mediator and both are unable to make a legally binding decision to resolve the property dispute.  Another alternative dispute resolution option is arbitration. In this process the disputing parties present their position and an independent neutral decision maker, known as the arbitrator can make a legally binding and enforceable decision.

The BSM property lawyers Sydney can advise you of the most appropriate option, prepare for the process and represent you during the process

Litigation

Litigation refers to the process of resolving a dispute in court. During litigation both parties to the dispute will argue their case before an impartial judge.  The property dispute lawyers at Brander Smith McKnight Sydney are able to represent you and argue effectively without the additional expense of a barrister.  Even during litigation, our property solicitors remain committed to resolving your dispute as early as possible, saving you money and time.  They will conduct ongoing negotiation, making formal offers of compromise and interlocutory applications to court.  Interlocutory applications are  applications made during the proceedings to gain a tactical advantage.

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Property Disputes between Individuals who own Property Together

Forced Sale

Family members, friends and business associates often own property together.  Sometimes one party would like to sell the jointly owned property and their co-owners refuse to sell.

The legislation stipulates that any person who owns any proportion of real property, (that is residential and commercial property), is entitled to force the sale of that property. Where agreement for sale cannot be achieved that person has a right to make an application to the Supreme Court, pursuant to Section 66G of the Conveyancing Act 1919 (NSW) for the court to order a sale of the entire property.

In the vast majority of cases, these matters are resolved without the need for an application to court. The property solicitors at Brander Smith McKnight can write to the co-owners explaining the rights of the owner wishing to sell.  This generally results in the co-owners agreeing to sell.  Furthermore, we can document that agreement to sell in the form of a deed to ensure that the owner who wants to sell can efficiently enforce that agreement.

If however the co-owners refuse, the Supreme Court can make an order to sell the property.  The court will then appoint trustees of the property, who are independent of the owners, and the property is placed in their control for the purpose of selling the property.  This is described as a trust for sale.

Family Law Property Disputes

Property disputes commonly arise during the division of property following the breakdown of a marriage or de facto relationship.

Property disputes in family law can be resolved both in and outside of court. The family law team at Brander Smith McKnight Sydney pride themselves on settling over 95% of our family matters and divorces without going to court. Resolving a family property dispute outside of court saves our clients time, money and stress.

The Family Law Act 1975 (Cth) defines the legal distribution of property between separated couples. It considers:

1. the overall value of the property to be distributed
2. the financial contributions the parties made to the relationship
3. the non-financial contributions the parties made to the relationship (including contributions made to the welfare of a family
4. or in the capacity of a ‘homemaker’)
5. the future needs of the parties to the relationship
6. the earning capacity of the parties
7. the effect of property distribution on any children of the relationship
8. any child support that has, must or may need to be paid by either party
9. Any financial agreements that exist between the parties to the relationship

More generally, property disputes in family law should be resolved in a manner which is just and equitable. Section 79(2) of the Family Law Act 1975 (Cth) provides that the court may make orders regarding property distribution that are just and equitable.  In other words, the court does not have the power to make an order to distribute property unless it considers it to be a fair distribution in accordance with the Family Law Act 1975 (Cth). It is important that you seek legal advice in a timely manner as there are time limits that may apply to the resolution of property disputes in family law.  There are some helpful articles on family law in our articles section.  Our family lawyers can assist you with property disputes that occur during the breakdown of a marriage or de-facto relationship.

Construction Work Property Disputes

Construction work often results in property disputes with adjoining properties.  These disputes may arise because for example the construction work requires an easement for utilities or the works encroach on an adjoining property or workers require access through a neighbour’s property.

Easements

Where construction requires an easement for utilities through an adjoining property, the Supreme Court has the power pursuant to Section 88K of the Conveyancing Act 1919 (NSW) to create such an easement. The court may this order “if the easement is reasonably necessary for the effective use or development” of the land.  The court must be satisfied with a number of things including that all reasonable attempts have been made by the applicant to reach an agreement and that the easement will not be “inconsistent with the public agreement”.  The court will also make orders  to compensate the owner of the land for the detriment imposed by the easement.

In the vast majority of cases, these matters are resolved without the need for an application to court. BSM property solicitors can write to the owners of the adjoining property explaining the rights of the property owner to obtain an easement.  This generally results in the neighbour agreeing to provide an easement and the land owner agreeing to compensate for this access.  Furthermore, we can document this agreement.

Access for Workers

A person who for the purpose of carrying out construction on their land requires access through adjoining land may make an application to the local court for a neighbouring land access order.  These applications are made pursuant to the Access to Neighbouring Act 2000 (NSW).  The builder is able to make this application on behalf of the property owner. These matters can generally be resolved by agreement without an application to the court and the BSM property lawyers can draft and prepare a licence agreement to formalise the arrangement between the property owners.  Such a licence includes clauses regarding safety measures, minimising inconvenience, insurance cover and ‘making good’ and any compensation.

Encroachment

Buildings must never encroach upon a neighbour’s land.  Where building work results in a portion of the building encroaching on a neighbour’s land, they have the right to make an application to the Supreme Court, pursuant to the Encroachment of Buildings Act 1922 (NSW).  This is a serious matter and the Court has the power to make orders with serious consequences, including the removal of the encroachment or the payment of compensation.

Property Disputes involving Off the Plan Purchases

An ‘off the plan’ property involves the purchase of a property that is planned to be built, but not yet built. Disputes commonly arise in relation to these purchases and it is essential to have good legal advice prior to signing any contracts. For example, a developer or builder has the right to modify the design of the building within certain parameters.  These parameters should be clearly defined and understood by the buyer.

Sunset clauses commonly cause property disputes.  These allow either party to terminate a contract when a building doesn’t reach practical completion by the sunset date.  This may seem fair, however in a market where prices are increasing this creates an incentive for the developer to delay the project and terminate the contract.

How can BSM Lawyers help you when purchasing Off the Plan?

Legal Advice prior to signing

Our property dispute lawyers can explain the advantages and disadvantages of this purchase method.  They can explain the rights and obligations conferred by the purchase contract and identify additional clauses and terms of concern. They will discuss important considerations such as:

• What is the cooling off period
• Is there a sunset clause and what are the implications of this
• What are the parameters for design modification
• Can costs be adjusted
• Are there clauses for dispute resolution
• What are the consequences for withdrawal from the contract

Legal Advice after signing

Our property solicitors can suggest legal remedies such as enforcing contractual rights and obligations, injunctions, specific rectification and compensatory damages.  We can review statutory warranties that compel builders to carry out building work with a proper level of care and skill and commence proceedings for any breaches.

Alternative Dispute Resolution Options

The property dispute lawyers at Brander Smith McKnight are committed to providing the most cost effective and professional advice.  The overwhelming majority of our off the plan property disputes are resolved by our lawyer’s expert and fierce negotiation. We also provide advice and advocate for you in other alternative dispute resolution processes such as mediation, conciliation and arbitration.

Brander Smith McKnight’s Property Dispute Lawyers

Brander Smith McKnight’s experienced property solicitors can assist you in all property matters. Our lawyers are committed to providing cost efficient and premium property dispute legal services in Sydney.  We have the expertise to achieve excellent results

How can BSM Lawyers Help

1. Mitigate the potential for property disputes by both drafting and reviewing a property contract. If there is a problem with a contract, we are able to explain this to you and negotiate and amend the contract prior to signing.
2. Advise of legislation relevant to your property dispute
3. Advise of alternative dispute resolution options available if a dispute occurs
4. Professionally represent you during alternative dispute resolution
5. Fiercely advocate for you in all levels of courts and tribunals

02 8539 7475

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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