For many landowners boundary issues do not arise as most blocks of land are surveyed and marked correctly.
However assume at your peril that your boundary and the plan are identical (we have a separate article titled “Boundaries & Surveys” if you would like to know more on this topic). If you do then find yourself in a position where you or your neighbour are encroaching on each other (particularly if the encroachment is built on) a boundary realignment or partial land acquisition will generally be required.
There are also many other reasons to alter the boundaries of your lot. Often farmers will want to acquire part of a neighbouring lot, developers acquiring multiple parcels of land for staged developments, some neighbours agree to realign shared driveways or other access points, or perhaps you simply want to change the shape of your block.
No matter the reasons, the following outlines the process to realign a boundary or partially acquire a neighbouring lot.
Contract Of Sale
Yes, a contract is required to purchase part of a lot. A partial land acquisition is still a dutiable transaction in Queensland, with the contract required to be stamped and duty assessed on the value of the land acquired.
The real benefit of the contract is also to house the terms of the sale; including parties, real property description, amount of land being acquired, finance conditions, purchase price (including any deposit), mortgagee consent conditions, settlement date, and any other special conditions required.
Most contracts will be conditional upon the survey plan being registered prior to settlement.
This ensures the new parcels of land are created before money changes hands.
The next stage is to engage a surveyor to draft a new survey plan creating the new lots.
This plan will cancel the current lots while simultaneously creating the new ones.
Surveyor’s fees can be quite high and it is recommended that a quote be obtained prior to entering into a contract, or at the very least have the contract conditional upon satisfactory survey.
Land Title Requirements
If you or your neighbour have a mortgage registered on your title you will be required to obtain the mortgagees’ consent to the lodgement of the plan.
Most banks are willing to consent, however they will usually require a copy of the contract and proposed plan prior to providing the approval.
Generally the banks will be required to surrender their mortgage prior to lodgement of the plan.
This should be noted to the surveyor as any current mortgages will need to be omitted from the new plan.
The bank will then lodge a new mortgage over the new lot.
They generally charge a fee to prepare the additional documents and for their agent to attend lodgement, so be prepared for the additional cost.
The land titles office also charge their own document lodgements fees, which will also need to be factored in.
The Land Practice Manual in conjunction with the Land Title Act 1994 (Qld) require all parties to the transaction to transfer the land to the receiving party.
The transfer is also required to be stamped and any duty paid to the Office of State Revenue.
Plan & Document Lodgement
The Torrens system of titling in Queensland requires strict adherence to lodgement order to create and record interests on land titles.
This is why an experienced legal practitioner should be engaged to prevent any requisition fees that result from improper lodgement order.
Once the plan and associated documents register, the new titles will have been created.
The settlement clause of the contract will come into play and the final purchase price can be paid.
This completes the process.
How We Can Help
At Quinn & Scattini Lawyers our experienced property lawyers are well aware of the pitfalls associated with boundary realignments and partial land acquisitions.
We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.
This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.