Land, leases and co-ownership

Property disputes

Disputes about land are slower and more technical than most civil matters, because the answer usually depends on a register, a plan or a contract rather than on what the parties intended.

General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.

Who this page is for

Slow, technical and worth doing carefully

Property disputes come in several shapes that look unrelated but run on the same foundations: a sale that has gone wrong before or after completion, a boundary or fence that is not where somebody thought, a shared driveway or right of way, co-owners who cannot agree whether to sell, a covenant that stops a development, a caveat lodged over a property, or a lease that has broken down.

What they have in common is that the answer is usually written down somewhere before the argument started. The folio of the register under the Real Property Act 1900 (NSW) records the owner and the interests affecting the land. The deposited plan records the boundaries. The contract for sale records what was agreed. The Conveyancing Act 1919 (NSW) supplies the rules that fill the gaps. Gathering those four things is nearly always the first useful step, and it is often cheaper than the first argument.

The second thing they have in common is that the stakes are high and the costs are real. Land is usually the most valuable thing a person owns, and a dispute about it can run for a long time and cost a great deal. That makes proportionality more important here, not less. A dispute about the position of a fence can cost more than the strip of land in question is worth, and somebody should say so before it does.

Time limits apply here as elsewhere. Section 14 of the Limitation Act 1969 (NSW) sets six years for causes of action founded on contract and on tort, running from when the cause of action first accrues, and some causes of action relating to land run on different periods under the same Act. If your dispute concerns something that happened years ago, raise the dates early.

How we help

What the work actually is

Reading the title before the argument

The folio of the register, the deposited plan, the section 88B instrument that created the easements and covenants, and any caveat or notation affecting the land. A surprising number of property disputes end once everybody has actually read the title.

Sale contracts that have gone wrong

Failure to complete, a notice to complete, a disclosure that was not made, a condition that was not satisfied, or a deposit in dispute. What can be done depends on the contract and on the Conveyancing Act 1919 (NSW), and usually on how quickly it is dealt with.

Boundaries, easements and access

Where the boundary actually is, what a right of way permits, and what a covenant prevents. These are decided from the plan and the registered instrument, with a surveyor where one is needed, rather than from long use alone.

Co-ownership that has broken down

Advice on the options when co-owners disagree — buy-out, agreed sale, or an application under the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale or partition. A negotiated answer avoids the cost of a contested application.

Caveats, lodged and challenged

Whether there is a genuine caveatable interest to support a caveat, what a caveat does and does not prevent, and how to respond to one lodged over your property. Lodging a caveat without proper cause carries its own exposure.

Choosing the right forum

The Supreme Court’s Equity Division for interests in land and for remedies other than damages, a lower court for a money claim within its limit, and NCAT for the matters given to it, including certain strata, home building and retail lease disputes.

Questions

Questions people ask first

My neighbour has built over the boundary. What can I do?

First establish where the boundary actually is, from the deposited plan and, where it is genuinely in issue, from a registered surveyor. Fences are frequently not on boundaries and long use does not move one. Once the position is established the options range from an agreement recorded properly to court proceedings, and the cost of each should be weighed against the value of the land involved.

Can I lodge a caveat to stop a sale?

Only if you have a genuine interest in the land that the law recognises as caveatable. A caveat under the Real Property Act 1900 (NSW) is not a general-purpose way of stopping a transaction, and lodging one without proper cause can expose you to a claim for compensation. Being owed money by the owner is not usually, by itself, an interest in their land.

The buyer will not complete. What are my options?

That depends on the contract and on what has already been done. A contract for the sale of land usually provides for what happens on default, including notices, termination and the deposit. Time is often critical, and steps taken before advice — including accepting money or continuing to deal as if nothing has happened — can affect what remains open to you.

My co-owner refuses to sell. Am I stuck?

No. Where co-owners cannot agree, the Conveyancing Act 1919 (NSW) allows a co-owner to apply to the court for the appointment of trustees to sell or divide the land. It is genuinely a last resort because it takes time and costs money, and the prospect of it is often what makes a negotiated buy-out or sale possible.

There is a covenant on my title. Can it be removed?

Sometimes. The Conveyancing Act 1919 (NSW) provides a mechanism for a court to modify or extinguish a restriction on the use of land in defined circumstances. Whether your covenant is a candidate depends on its terms, on who has the benefit of it and on the current use of the land, and that has to be read from the registered instrument.

Does a property dispute have to go to the Supreme Court?

Not always. The Supreme Court’s Equity Division hears most claims about interests in land and claims for remedies other than damages, but a straightforward money claim within another court’s limit can be heard there, and NCAT has been given certain property-related matters including some strata, home building and retail lease disputes. Filing in the wrong place costs time and money.

How long does one of these take?

Longer than most civil matters. Property disputes usually involve expert evidence, searches and documents going back years, and the courts that hear them are busy. That is one more reason to test early whether a negotiated outcome is available, and to be clear about what each stage costs before committing to it.

What to bring

Property disputes are decided from the register and the plan. Bring those and most questions can be answered at the first meeting.

The current title search for the property, and the deposited plan.
The contract for sale and any section 88B instrument creating easements or covenants.
The lease, the strata by-laws or the co-ownership agreement, if one of those applies.
Any survey, building report or valuation you already hold.
Photographs of what is in dispute, with dates.
Correspondence with the other party, their agent and their solicitor.
Any caveat, notice to complete or court document served on you, and the date you received it.
The dates: when you bought, when the problem started, when you first raised it.