Property DisputesWhen Should You Seek Legal Advice?

A property dispute can start with something surprisingly small - a fence, a shared driveway, a tree, a delayed settlement or a problem discovered after moving into a new home.

But when the disagreement involves property rights, a legally binding contract or one of your most valuable assets, a small issue can quickly become much more significant.

Property disputes can arise before, during or long after a property transaction. They may involve buyers and sellers, neighbours, developers, builders, body corporates, councils, insurers or other parties.

Why can property disputes become complicated so quickly?

Property disputes aren't always about who owns the land.

They can involve how land may be used, who has access to it, where a legal boundary actually lies, what rights another person has over the property or what someone agreed to under a contract.

And the answer isn't always obvious from what you can physically see at the property.

Titles, easements, covenants, survey information, Sale and Purchase Agreements and other legal documents can all potentially become relevant depending on the dispute.

That is why understanding what type of property dispute you're actually dealing with can be an important first step.

Is the fence really the legal boundary?

Not necessarily.

A fence, hedge or driveway may look like the obvious dividing line between two properties - but what you see on the ground doesn't necessarily establish the legal boundary.

Questions can arise when a new fence is proposed, building work takes place near a boundary or someone discovers that an existing structure may not be located where they thought it was.

Surveying and legal issues can both become relevant in a boundary dispute, but they serve different purposes.

A surveyor may help establish where a boundary is located, while a lawyer can help explain the legal issues arising from the particular circumstances.

Can my neighbour have legal rights over my property?

Possibly - and this is where easements become important. An easement can give another person certain rights relating to land they don't own. Common examples can involve:

• •Rights of way
• •Vehicle or pedestrian access
• •Drainage
• •Water
• •Electricity or other services

These rights may be registered against the property's title and can continue to affect the land even after the property changes ownership.

This can surprise property owners who assume that owning the land automatically means nobody else can have rights over it.

Who is responsible for a shared driveway?

Shared driveways are common in New Zealand - and they can also become a source of disagreement.

Questions may arise about who can use the driveway, where vehicles can be parked, who pays for repairs and maintenance or whether one owner is interfering with another person's access.

The answer may depend on the particular rights and obligations recorded in the documents affecting the properties.

How neighbours have historically used a driveway doesn't necessarily tell you the complete legal position.

Found a serious problem after buying - what happens now?

Discovering a problem after settlement can be extremely stressful. It might involve:

• •Building defects
• •Water damage
• •Unconsented alterations
• •Drainage problems
• •Information about the property that wasn't expected
• •Differences between what a buyer understood and what they later discovered

But finding a defect doesn't automatically establish who is legally responsible for it.

Depending on the circumstances, questions may arise involving the Sale and Purchase Agreement, representations made before the purchase, building reports, council information and the involvement of different professionals.

This can make post-purchase property disputes particularly complex.

Can an easement restrict what I do with my own property?

An easement doesn't necessarily mean someone else owns part of your land - but it may give them legally recognised rights relating to it.

For example, a right of way may affect access over part of a property.

Other easements can relate to pipes, drainage, water or services.

Exactly what an easement allows depends on the relevant legal documentation.

This is why the words appearing on a title can sometimes matter much more than a property owner initially expects.

What about covenants?

A property can also be affected by covenants.

Covenants may place obligations or restrictions on how land can be used, depending on their terms.

They can arise in residential developments and other types of property and may concern matters that aren't immediately obvious simply from visiting the property.

Understanding the legal documents attached to a title can therefore become important when a disagreement develops about what an owner can or cannot do.

Can neighbour disputes become legal disputes?

Yes. Neighbour disagreements can involve much more than personality clashes. Common issues include:

• •Fences and boundaries
• •Trees
• •Drainage
• •Access
• •Shared driveways
• •Building work
• •Noise
• •Parking
• •Easements and rights of way

Where the disagreement involves legal rights connected with land, the relevant property documents and legal rules may need to be considered.

Does a property dispute mean going to court?

No.

Speaking with a lawyer doesn't automatically mean starting court proceedings.

Depending on the nature of the dispute, possible ways of addressing it may include negotiation, correspondence between the parties or their lawyers, mediation and other dispute-resolution processes.

Some disputes do ultimately require formal legal proceedings, but many don't.

Understanding the legal position can help clarify what the dispute is actually about and what options may be available for resolving it.

When should you speak to a lawyer?

There isn't one answer that applies to every property dispute.

However, legal assistance can become particularly relevant where a disagreement involves property ownership, contractual obligations, significant financial consequences, registered rights over land or a dispute that isn't resolving through ordinary communication.

A lawyer can review the relevant circumstances and documents and explain which legal issues may be involved.

And sometimes obtaining legal advice early can help people understand whether they actually have a legal dispute at all.

What kind of lawyer do you need for a property dispute?

This is an important question - because not every property lawyer handles the same type of work.

A lawyer who regularly handles residential conveyancing may be ideal for buying or selling a home.

But a complicated boundary dispute, easement problem, failed property transaction or significant contractual dispute may require a lawyer with experience in property disputes, civil litigation or property litigation.

Some disputes may also involve several areas of law at once.

Finding a lawyer whose experience matches the actual problem can therefore be just as important as deciding to seek legal help in the first place.

Common questions about property disputes

• •Is my fence actually on the legal boundary?
• •Can my neighbour use my driveway?
• •Who pays to repair a shared driveway?
• •Can someone have rights over land that I own?
• •What does an easement on my title mean?
• •Can a covenant restrict what I do with my property?
• •What happens if I discover a defect after buying?
• •What if a buyer or seller doesn't settle?
• •Can a neighbour dispute be resolved without court?
• •What happens in a body corporate dispute?
• •Do I need a property lawyer or a litigation lawyer?