Victorian courts ill-equipped to help people who build houses on wrong blocks
Unfortunately for Melanie and David Moor, who are grappling with this issue in south-west Victoria, there are no such laws in place in their state despite it being mooted as part of a law review in 2010.
Adjunct professor at Victoria University's Sir Zelman Cowen Centre, Pam O'Connor, was the commissioner of the Victorian Law Commission's 2010 review into the state's Property Law Act 1958.
As part of the review, the commission examined a case much like the situation between the Moors and the owner of the Camperdown block.
In a case from 1957, called Brand vs Chris Building Company, a defendant had also mistakenly built a house on the wrong land.
The Supreme Court ultimately ruled it did not have the jurisdiction to aid the defendant, effectively granting the house to the landowner.
"The Supreme Court of Victoria said in that situation [the house] belongs to the owner of the land, basically end of story," Professor O'Connor said.
"There's no compensation [for the defendant] even though it adds to the value of the land."
Professor O'Connor said the so-called mistaken improver problem had been dealt with in South Australia, New South Wales, Queensland and New Zealand through laws that gave the Supreme Court "discretion to make such orders as are just and equitable in the circumstances".
This may include ordering land sales, ordering the removal of improvements, transfer of titles, or ordering the landowner to pay the home builder compensation.
"There's a range of things a court can do to deal with the varied circumstances that can arise," Professor O'Connor said.
It is unclear how often the matter of building on the wrong block comes up.
But a Queensland district court judge noted in a similar 2010 incident that the frequency of it happening "is surprisingly large".
"Such errors are likely to recur as long as there is large-scale development of new residential subdivisions, which in their undeveloped condition often make it difficult to identify a particular allotment or to distinguish one from another," the judge said.
Professor O'Connor agreed, noting that Queensland had reviewed its property law act twice recently.
"It's probably come up other times [in Victoria since 1957] but people may have been able to sue somebody [like] a builder or architect who doesn't check [the address] — they might seek compensation from that professional," she said.
"The problem is that Victoria has never really provided for this scenario, and they haven't given the court the range of powers that it would need to fashion an outcome that's fair in particular circumstances, which is a real shame.
"The commission put forward a very specific proposal supported by detailed analysis of the legal problem, and it hasn't been acted on."
The state government has been approached for comment.
Discussions between the Moors and the owner of the Camperdown block of land remain ongoing.
"I just hope the lawyers can come to some sort of resolution," Ms Moor said.
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