Neighbours are responsible for shared fences. When building or repairing fences both parties should agree on the style, cost and timing of the necessary works. The Fences Act provides a formal process for resolving of fencing disputes including the issuing of a fencing notice. Costs should be shared but taking a disagreement to the Magistrates Court could cost more than the sum in dispute.
Fence disputes are the most common type of dispute between neighbours. Disagreements over fences may relate to:
- where the fence is;
- whether it’s necessary;
- who should pay for it;
- who should maintain it;
- who should do the work on it; or
- what type of fence is needed.
In Victoria, the Fences Act 1968 (Vic) (“Fences Act“) makes neighbours jointly responsible for the cost of construction and maintenance of fences. In most fencing matters, each neighbour has responsibility to pay for half of the cost in relation to the fence.
The Fences Amendment Act 2014 (Vic) (“FAA“) will update and amend the original 1968 Fences Act. At the time of publication the FAA has not yet come into operation. The FAA has a default commencement date of 1 December 2014, but it is likely to come into force prior to this.
The aim of the FAA is to facilitate fairer dealings between neighbours over shared dividing fences and encourage resolution of fencing disputes. TheÂ FAA provides greater guidance on initiating fencing works, contributing to fencing works, the type of dividing fence to be built and the placement of dividing fences. It also sets out the powers of the Magistrates’ Court to make orders in respect of fencing works and to determine disputes about the common boundary of adjoining lands.
It is generally advisable that neighbours should attempt to resolve any issues by agreement rather than having the fence dispute escalate into an expensive and ongoing issue between them (see “Resolving problems“).
A starting point for the construction of suburban fences is that both neighbours are responsible for the fence. If you want to build, replace or repair a fence, the first thing you should do is to discuss it with your neighbour. You should attempt to reach agreement on:
- how much each of you will pay towards the costs;
- the look of the fence:
- materials (timber (pine/hardwood), pre-coloured steel, brick, post and wire, etc.);
- colours (particularly of surfaces that can not be painted, such as pre-coloured steel);
- timeframes for removal of the old fence;
- timeframes for the construction of the new fence;
- who will arrange for it to be built (getting and selecting quotes from contractors);
- other costs (clearing land to enable access for removal and construction); and
- who gets the “flat side” on timber fences, etc.
You should talk to your neighbour about these issues.Â If it is not urgent, it may be worthwhile giving them some time to think about these issues, especially if there are any points of difference that need to be worked through.Â If you are not comfortable discussing this with your neighbour, write a letter and place it in their letterbox, or complete a “fencing notice” (see below) detailing your proposals for the new fence.
If dealing with a neighbour makes you anxious or uncomfortable, it can be difficult to enter into discussions with them. Visit the DSCV website for simple and effective strategies for talking to “difficult” neighbours.
Arranging for a fencing contractor to provide a written quote at this early stage is worthwhile, as it can assist in identifying issues that may give rise to a dispute.
If you and your neighbour cannot agree, the Fences Act provides for a formal process involving a written notice (a “fencing notice”) to assist in resolving a fence dispute. This fencing notice is a legal document thatÂ formally advises your neighbour that you would like to build a new fence andÂ that you would like your neighbour to share the cost.
The fencing notice should be in writing and set out:
- where you want the fence to go;
- how you want the fence to be built;
- what type of fence you want built; and
- an estimate of the cost of the works and an explanation of the basis of that estimate (which may be a quote)
You can draft your own fencing notice, and you do not need a lawyer. Example notices are available online at a number of websites, such as http://www.fencingonline.com.au. Fencing contractors are another source of fencing notices.
Note that the FAA will require more specific information to be contained in a fencing notice under the proposed new sectionÂ 13 of the Fences Act.
Fence notices can be given personally to your neighbour or by post. However, sometimes the issuing of a fencing notice can cause a dispute to escalate. So depending on the situation, it is advisable to try the personal approach first.
After one month from the date you provided the notice (or 30 days under the FAA), if you have not heard from your neighbour, or you have not reached agreement on any or all of the details concerning the fence, legal proceedings can be initiated in the Magistrates’ Court to resolve the deadlock. Taking the matter before the court should be considered as a last resort.
Further advice can be sought from a community legal centre ““ see Legal services that can help.
The current Fences Act contains separate processes in relation to the rules for maintenance and repair of fences as they are for building fences although they are almost the same.
If you think that your fence needs to be fixed up, you should go over and discuss it with your neighbour. If you can’t reach an agreement about what should be done and/or who should pay what, give your neighbour a notice requiring them to repair the fence or to help you to pay for repairs.
If nothing happens within one week, or if you haven’t reached an agreement by then, you can repair the fence yourself and get a court order requiring your neighbour to pay their share.
If your neighbour gives you a notice asking you to help pay for repairs, and you think they are asking for too much, you can go to the Magistrates’ Court nearest to you and issue a complaint so that court can decide how much you have to pay for the repairs.
The law does not specify what should happen if your neighbour doesn’t agree that the fence needs to be repaired, but the court would probably only order your neighbour to pay if it thought repairs were necessary.
If any part of your fence is destroyed by an accident, you may repair it straight away and then get your neighbour to pay their share. If your fence is destroyed or damaged by fire or a falling tree due to neglect by your neighbour, the neighbour must pay for the whole cost of the repairs.
Before taking any action, visit the DSCV website and watch the video, “Can’t I just fix it myself? Do I have to talk to my neighbour first?”.
Under the FAA it is proposed that there will be one simplified process for all fencing works, whether those works involve construction of a new dividing fence or repair of an existing dividing fence. The FAA is flexible about the circumstances that may necessitate urgent fencing works where it is impracticable to give a fencing notice and these are outlined in the proposed new sectionÂ 23 of the Fences Act.
You, and anyone else helping you to build or repair a fence under the Fences Act, may go onto your neighbour’s land at all reasonable times and do whatever is reasonable and necessary to build or repair a fence between the two properties.
At all stages in a fencing matter, negotiation and mediation between the parties (without resorting to lawyers and the court system) should be seen as preferable. The DSCV (see “Dispute Settlement Centre of Victoria“) regularly assists neighbours in fencing disputes. However, if agreement cannot be reached, the final step is to take the dispute to court.
The Magistrates’ Court can resolve disagreements about fences. The Magistrates’ Court has published a fact sheet that provides a summary of the procedures to be followed to initiate proceedings in a fencing dispute and how to prepare and serve the relevant complaint. The Fencing Disputes Information Sheet and a Complaint (Fencing Dispute) Form 5A are both available from the court’s website at magistratescourt.vic.gov.au (follow the links from “Publications” and “Forms”).
If, after a complaint has been issued, the other neighbour files a defence, the matter is normally referred to mediation or pre-hearing conference with a court Registrar. It is common for disputes to be resolved at this pre-hearing stage. If the mediation is unsuccessful then the matter will be listed for a court hearing.
At the hearing both parties will have an opportunity to put their case. Evidence in the form of photographs, reports, quotations from fencing contractors and other documents can assist the magistrate. In making a decision, the court is likely to look at what sort of fence is usually built in the neighbourhood, the type of material ordinarily used, the usual height, and perhaps even the colours that they are painted or stained.
The FAA will clarify that owners must contribute in equal proportions to a “sufficient dividing fence” and sets out a number of factors to be considered in determining what is a sufficient dividing fence. These factors are outlined in a new sectionÂ 6 to the Fences Act and include: the existing dividing fence, if any; the purposes for which the owners use the adjoining lands or intend for them to be used; reasonable privacy concerns; the types of dividing fences used in the local area; and other factors.
If one neighbour wanted a more expensive kind of fence than the others in the neighbourhood, the court would probably order the person who didn’t want to pay for the more expensive fence to pay half the cost of building a normal fence. The person wanting the larger fence would have to pay the rest of the cost.
The Magistrates’ Court can make an order about:
- the type of fence to be built;
- how much you and your neighbour will each have to contribute to the cost of building the fence; and
- where the fence is to be built.
The FAA proposes to give the Magistrates’ Court the power to make a broader range of orders about anything that may be in dispute in a fencing matter. Some of the new matters about which the Court may make orders are outlined in the proposed new sectionÂ 30C to the Fences Act and include:
- the time within which the fencing works should be carried out;
- the person to carry out the works;
- the line that is the common boundary; and
- that any party cease or discontinue conduct that is unreasonably damaging (or may unreasonably damage) a dividing fence.
Be aware that if you have to involve lawyers in your dispute, the cost of going to court will probably exceed the amount you are trying to get from your neighbour. Therefore, it is best to reach some sort of agreement with your neighbour.
If you reach an agreement with your neighbour, but your neighbour doesn’t do as agreed, or if your neighbour doesn’t do what the court ordered, you can consider proceeding to build the fence and get what you were promised from your neighbour at a later date. This could involve going to court again.
If the court ordered your neighbour to do something but did not set a time by which it was to be done, or if your agreement with your neighbour did not mention time, you must wait for three months from the date of the order or the agreement before you can go ahead and build the fence and get your money back.
You can only take this approach if the thing that your neighbour did not do is more than just a minor thing.
For helpful information about reaching agreements with your neighbours, visit the DSCV website and watch “What’s an agreement and what sort of things need to be in it?”.
If you can’t find your neighbour (e.g. if the land next to you is vacant), and you want your neighbour to help you pay for a fence, you should send a fencing notice by mail to the person who is shown as being the owner in your council’s rate records. Contact your local council and ask for this information for the purpose of serving a fencing notice.Â If that is not possible, put an advertisement in your local paper asking the occupier of the land to contribute to the building of a fence between your properties (sÂ 9(1) Fences Act).
If nothing happens in the time specified for response, you can then go to a Magistrates’ Court and get the same type of order as you could have obtained if your neighbour was there (sÂ 9(2)). If you then go ahead and build a fence, and someone moves in next door, you can give that person a copy of the order. If you do this within one month of your neighbour moving in, that person will have to pay the share that the court ordered them to pay. If you do not receive the money within one month of giving your neighbour a copy of the order, you can go back to court to enforce the order for payment.
The FAA proposes that if an owner wishes to undertake fencing works but cannot locate the adjoining owner after making “reasonable inquiries” ““ including asking any person who occupies the property and asking the local council ““ that owner may undertake the works. If an owner gives a fencing notice but after 30 days the adjoining owner has not responded, the owner wishing to undertake the works may do so.
In either circumstance under the FAA ““ where the adjoining owner cannot be located or does not respond ““ a court order will be required if the owner who undertook the fencing works wishes to seek a contribution from the adjoining owner.
If two neighbours do not have a fence between them that is adequate for the purposes of both of them, they must both pay for one to be built. Usually, they would each have to pay for half of the cost of the fence. If one neighbour wants a much larger or more extravagant fence than the other, the position is different. In all cases but one, it would then be up to the neighbours to reach agreement between themselves as to how they should share the cost. If they cannot agree, only a court is empowered to make an order to resolve the deadlock.
Although a 50/50 split of fencing costs is the starting point for most negotiations, it is worth considering offering to pay a little more to assist in resolution of the dispute, particularly if a new or repaired fence is a high priority for you.
If you live next to land occupied by the government, the situation is generally different and you will not be able to get your neighbour to help pay for a fence. You will have to meet the whole of the cost of building or repairing the fence yourself.
For further information, visit the DSCV website and watch the video, “My neighbour’s asking me to contribute to something I can’t afford and/or that’s too expensive”.
The current Fences Act makes the occupiers of land (not the owners) responsible for the construction and maintenance of fences. It also sets out how costs are to be shared between tenants and landlords.
If you are a tenant and your neighbour gives you a notice asking you to help pay for a fence, send a copy of the notice by registered mail to:
- your landlord;
- the person to whom you pay your rent; or
- anyone who you think is authorised to accept documents on behalf of your landlord.
You must do this within 14 days of receiving the notice, or you will have to pay for the whole of your landlord’s share of the cost of the fence. You may have to pay part of the costs anyway, depending on the unexpired term of your lease (see table below).
|Remaining length of lease||You pay|
|Less than 3 years||A quarter of the cost|
|3 to less than 6 years||A quarter of the cost|
|6 to less than 12 years||Half the cost|
|More than 12 years||All the cost|
Under the FAA the situation will change to make property owners responsible for dividing fences in most instances, but it provides that long term tenants (over 5 years) are sometimes required to contribute to fencing works.