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Boundary issue.. confusing and complex!

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Posts: 5
 Mads
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(@mads)
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Hi Everyone,

First post on behalf of elderly Aunt living near Vilamoura. She is in a spot of bother and like us all, very worn down emotionally from the events of the pandemic.

The situation is: she bought a place out in the country 20 years ago with Uncle who sadly is no longer here but she loves the life and her family get to visit and have glorious memorable holidays. She lives on a plot with an old farmhouse beside her house, and had a local builder construct a small carport/utility room about 10 years back. She is surrounded by other ex-pats to the back and to the side is a separate plot with a derelict building. We were aware of the restrictions to building in the countryside but she always said she would let us know if ever the derelict place went up for sale.

About 2-3 years ago, she received a phonecall from a solicitor acting on behalf of a new neighbour. Apparently the derelict site had been sold to them and the new owner was claiming she was squatting on their land not to mention the little utilities building being there too on that piece of land, without 'planning papers'. Thing is she and my uncle had checked all of this out years previous through hiring all sorts of solicitors and surveyors, who clearly boundaried the land. There is an old chart from 50 years ago which she says might in a rough way indicate some implication of a boundary problem. Her solicitor seems to be washing his hands of it and says she should work something out with the neighbour. She is beaten down by the whole matter and I have told her I would get involved. She fears costs of disputing something like this and feels she will get nowhere being a 'foreigner'.

The first thing that comes to mind is - Is it worth defending or should she fold amicably? I wonder who is to blame for the error if there has been an error, and if she can actually chase them for some kind of compensation? If she were to fight it legally, how long would the case stretch for and is she looking at thousands in legal fees!? If she were to sell up altogether would any buyers be put off by an outstanding dispute? From my searches on here I've also seen the 'splitting the plot' option - not sure if that could be done with her farmhouse, she said she is open to it, in that case we would have our own holiday home right beside her! She is aware the little utilities shed is a problem and I've said she might be able to apply for planning retrospectively, or if not to knock it and rebuild it - but she says she may receive a massive fine from the camara. She hasn't met the neighbour but says she is willing to negotiate something with them, although I do not anticipate that going well for her.

Sorry for the long post! I will probably have to seek independent legal advice before I chime in for her I guess, but any guidance or anecdotes of relevant experiences would be most welcomed! 

Mads

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Posts: 248
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(@jeanne)
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In the US, one would hire a land surveyor to determine the legal property boundaries.  Is that not done in PT? It's commonly done here before erecting e.g. a permanent boundary fence or wall.  

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(@thomasribatejo)
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@jeanne it is possible, and not uncommon, to get a topographical survey (levantamento topográfico) undertaken. This is advisable at the point of buying a property where there could reasonably be any doubt - probably more the case in more rural places with land. It's not standard, however. Either the seller (on the buyer's insistence) or the buyer can commission/pay for it. It is a different piece of work to a structural/condition survey, and is not usually included in the latter.

This doesn't usually come up in a UK context, where Land Registry documentation examined as part of a sale/purchase is typically much clearer than the paperwork here; and this may be true for other countries, too, perhaps explaining why buyers don't necessarily think they may be missing something. A good lawyer at the point of purchase should sort this out; but as lawyers are not technically required in transactions here, this opportunity to pick something up may also be missed.

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 Mads
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@jeanne it was done Jeanne but it appears they either made a mistake or some other dodgy dealing occurred which I'm led to believe is how it works in Portugal - it might now be changing but that's the view I've had from several ex-Pat friends over the past 20 years.

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(@thomasribatejo)
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Mads, if your aunt has a previous topographical survey which indicates she's in the right (or at least had independent professional advice to that effect) then she should have a case. If the documentation can't be found and the surveyor can't resupply it, she could consider getting one done again. I would also try to establish what the contradictory evidence of the neighbour is - it could be bluff, without any firmer basis than that of your aunt.

I think it would be foolish to try to sell without a resolution here - you could inflame the situation by appearing to sell something your neighbour believes is theirs.

I would resolve the boundary first and separately to any buildings/permissions issue, rather than rolling them in together. Legal advice in isolation, without a topographical survey, may well not resolve it. Try to find an experienced, local-ish lawyer who deals with this kind of thing (not a showy expat lawyer) as they may have links with a topographical surveyor, for instance, without adding on margins or extra work. It sounds she should move in from the existing lawyer, and get fresh eyes on it.

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 Mads
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Posted by: @thomasribatejo

If the documentation can't be found and the surveyor can't resupply it, she could consider getting one done again. I would also try to establish what the contradictory evidence of the neighbour is - it could be bluff, without any firmer basis than that of your aunt.

Thanks a lot for your responses Thomas - I think a new solicitor is absolutely the way to go, but maybe a new topographical survey would be a more cost effective first step - because if the surveyor marks out new boundaries then the solicitor won't be able to do much. My impression is that would be a lot cheaper than the solicitor who could cost thousands. But then I think on what legal authority will they re-survey the land - would they have the power to query dishonest map alterations or conveniently misplaced maps etc. wold they even investigate it, probably not. As far as I'm aware a map has been 'found', who knows maybe the locals also support it and can influence the camara's decision etc. Doesn't she have some sort of right to it after being there so long, and surely the new buyers knew what they were getting? 

Posted by: @thomasribatejo

I think it would be foolish to try to sell without a resolution here - you could inflame the situation by appearing to sell something your neighbour believes is theirs.

She wants to just fold and sell up. So it wouldn't affect any sale. I'm not happy with the manner in which it is all happening. I think the place has tremendous potential but really put off by all of this dodginess in dealings - I mean why bother hiring professionals out there if their work can be retracted later and their word is not accountable or credible?

Definitely new legal advice needed on it, just worried about cost and time involved. I don't blame her wanting to just run away from it with so much uncertainty and a complete lack of trust in the system.

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(@thomasribatejo)
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@mads I think the absolute first thing to do (I'll use "you", but of course I realise this may be a mixture of you and your aunt) is to assemble all the documentary evidence that you have, and check what it says.  You will waste time, and potentially money, consulting a professional without having all of this available in front of you, or in electronic form, as suits the meeting.

Rolling back a bit, it sounds like the previous topographical survey was conducted in knowledge of an old map, and with a view to resolving the issue.  If it was conducted correctly, and the results were registered, then the resurfacing of old maps might not make any difference.  

You mention professionals having retracted what they've said, and dodgy dealings - but the only specific thing in the earlier post was the solicitor not being interested any more.  Have you evidence of more?  What matters more is the accuracy and validity of the previous topographical survey - unless that has been retracted, or independently assessed as inaccurate, then it should not be assumed to be wrong, any more than the map which has allegedly been found (and which could be older/inaccurate!)

Bear in mind that the legal system here is essentially based on codes and facts, not opinions and argumentation - so I would ignore the "background noise" of what people "reckon", and who knows who, and focus on: do you have, or can you get, the documentary evidence in support of your position.  If you have/can, then definitely speak to a relatively local (Algarve) Portuguese lawyer with relevant experience in property disputes - a flashy, non-local, for-expats lawyer is not more likely to get the right outcome for you.

It sounds as if either your aunt, or the new neighbours, or a mixture of the two, were missold or misinformed.  The latter may be on the front foot, but it doesn't mean they are necessarily correct!

Land registry is not the purview of the local council, it's a national function (which works via local offices which are not run by the council).  So, what the council thinks, and what local people think, should not be relevant.  Of course, people know people, and are human - but this is about two owners with essentially equal rights.  (The illegal building IS the council's area, for sure, but I'd sort that separately/afterwards.)

(I do not believe having lived there for X years will ultimately make a difference, by the way - unless I have misread things, her entire property is not being removed in a worst case, just an element on which she does not live?)

I can't see how selling would not be affected, unless I guess she decided to only sell the area about which there is no doubt - but establishing that boundary might also need a topographical survey, under these circumstances.  If wanting to sell what she has always believed was hers might lead to an unnecessary loss, as this issue would need to be declared, and any buyer would want it resolved first - so I think one way or another, the next steps need to be pursued.  Get and check paperwork, get the right (new) lawyer, and see what s/he says about the options and chances, when s/he has also engaged with the other party to see what they have got.

A lawyer should be prepared to have an initial conversation to assess what's involved, and to give an idea of pricing.  They may well not give you as much info as you'd like, prior to engaging them formally, but it'd help them establish whether they're the right person.  A lawyer who doesn't want to have a first conversation is probably not going to be the right one for you!

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 Mads
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@thomasribatejo Thanks Thomas some useful thoughts in there and food for thought. I really feel for her and want to help as much as I can. You may have misunderstood me about "professionals retracting", I mean that if she and my uncle hired a chartered topographer/ surveyor to work with the solicitor all those years ago, then just how much credibility do they have seeing as their work now seems to have little legal weight placed on it. Why else would the same solicitor want to wash his hands. I'm confused and a bit annoyed to be honest. I really hope you are correct about the legal system being based on codes and facts over opinion etc as that has not been what I've been led to believe by Portuguese friends and ex-Pats, and it is downright scary for any ex-Pat who is isolated out there. Your guidance is much welcomed to be honest and re-assuring. I will speak with her next week and continue to support her, maybe we can find a good advogada who can give us the facts upfront. I would love to get involved there for many years beyond my Aunt's stay even if there may be some bad feeling with this neighbour.

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(@jeanne)
Joined: 12 months ago

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@thomasribatejo " I would resolve the boundary first and separately to any buildings/permissions issue, rather than rolling them in together. " Absolutely - any lawyer will need facts to base their advice on, not simply what a neighbor says. All lawsuits are essentially what one party claims vs what they other party claims, and the facts need to examined to determine which party is correct. There may be "a map" , but it does not necessarily have any legal value.

Does PT law have any concept similar to adverse possession in Common Law?  

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(@old-bloke)
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Posted by: @jeanne

Does PT law have any concept similar to adverse possession in Common Law?  

Chapter 7 of the Código Civil (Usucapião), but I don't think it will apply in this case due to Article 1293.

Artigo 1293.

(Direitos excluídos)

Não podem adquirir-se por usucapião:
a) As servidões prediais não aparentes;
b) Os direitos de uso e de habitação.
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