Fences

 

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.

Introduction

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. The Fences Act makes it clear that owners must contribute in equal proportions to a “sufficient dividing fence”. Section 6 sets out a number of factors to be considered in determining what is a sufficient dividing fence. These factors include the existing dividing fence (if any); the purposes for which the owners use the adjoining lands; reasonable privacy concerns; and the types of dividing fences used in the local area.

Neighbours should attempt to resolve any issues between themselves rather than having the fence dispute escalate into an expensive and ongoing issue between them (seeResolving problems”).

Recent changes to the Fences Act facilitate fairer dealings between neighbours over shared dividing fences, and encourage resolution of fencing disputes. The updated Fences Act provides greater guidance on initiating fencing works, contributing to fencing works, and determining the type and placement of a dividing fence to be built. The Act also clarifies the powers of the Magistrates’ Court to make orders about fencing works and to determine disputes about the common boundary of adjoining lands.

How to get a fence built or repaired

A starting point for the construction and maintenance 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;

whether the fence should be repaired or replaced;

the look of the fence:

height,

materials (e.g. timber (pine/hardwood), pre-coloured steel, brick, post and wire),

colours (particularly of surfaces that can not be painted, such as pre-coloured steel);

timeframes for the repair or construction of the new fence;

who will arrange for it to be built or repaired (i.e. getting and selecting quotes from contractors);

other costs (e.g. clearing land to enable access for removal and construction); and

who gets the “flat side” of a timber fence. Note that the Fences Act states that the rails and framing should be placed on the same side as the previous dividing fence (if any). In all other cases, the rails and framing should be placed on the side least subject to weathering. However, owners can agree among themselves on which side they should be placed.

You should talk to your neighbour about these issues. 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.

If you are not comfortable discussing this with your neighbour, write a letter and place it in their letterbox, or complete a “fencing notice” detailing your proposals for repairing or replacing the 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.

You can not go ahead and build or repair a dividing fence unless you have reached an agreement with your neighbour or you follow the processes in the Fences Act.

The Fences Act provides for a formal process involving a written notice (a “fencing notice”) to assist in resolving a fence dispute. The fencing notice forms the basis for the owners to negotiate and agree about fencing works. If you and your neighbour have agreed to the fencing works and any other works that need to be done, then a fencing notice is not required.

A fencing notice is a legal document that formally advises your neighbour that you would like to build a new fence or repair an existing fence and 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;

the type of works to be carried out;

the person to be hired to undertake the works;

an estimate of the cost of the works and an explanation of that estimate; and

contribution proportions.

You can draft your own fencing notice, and you do not need a lawyer. An example fencing notice is available on the DSCV website. Fencing contractors are another source of fencing notices.

Fencing notices can be given personally to your neighbour or by post. However, sometimes issuing a fencing notice can cause a dispute to escalate. So depending on the situation, it is advisable to try to talk to your neighbour first.

Even when an owner is seeking no contribution from their neighbour for the construction or repair of a fence, they must reach an agreement with their neighbour or follow the fencing notice procedure.

If your neighbour has responded to the fencing notice and agrees to the details concerning the fence, you can proceed with the fencing works.

After 30 days from the date you provided the fencing notice, if you have not heard from your neighbour, you can proceed with the fencing works without their agreement. However, a court order will be required if you wish your neighbour to contribute to the cost of the works.

Urgent repairs

If a fence needs to be repaired urgently and it is impracticable to give your neighbour a fencing notice, the Fences Act allows an owner to undertake the works without giving notice. If an owner who has undertaken urgent fencing works wishes to seek a financial contribution from the adjoining owner, they must give their neighbour an urgent fencing notice, setting out matters including the nature of the works that were undertaken, how much they cost, the amount being sought, and the reason for the urgency. Examples of urgent fencing notices are available on the DSCV website.

What if I can’t find my neighbour?

If you can’t find your neighbour (e.g. the land next to you is vacant) and you have made “reasonable inquiries” – including asking any person who occupies the property and asking the local council –you may undertake the fencing works.

Who pays?

The Fences Act says that owners must contribute in equal proportions to a “sufficient dividing fence”.

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 a fence to be built or repaired. Usually, they would each have to pay for half of the cost of the fence. The Fences Act makes it clear that if one neighbour wants a much larger or more extravagant fence than the other, the position is different. It would then be up to the neighbours to reach an 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, if you anticipate resistance from your neighbour, it is worth considering offering to pay a little more to assist to resolve 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 or council (e.g. a public park or reserve), 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 pay the whole cost of building or repairing the fence. 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”.

Fencing works: tenants

In most circumstances, the Fences Act makes the owners of land responsible for the construction and maintenance of fences.

However, long-term tenants are sometimes required to contribute to the cost of fencing works, depending on the unexpired term of their lease (see table below). A long-term tenant is only liable to pay if they receive the required notices under the Fences Act. The notices in relation to long-term tenants are available from the DSCV website.

Remaining length of lease

Tenant pays

Less than 5 years

Nothing

5 years to less than 10 years

Half the landlord’s share

More than 10 years

All the landlord’s share

Boundary disputes

The Fences Act contains a disputes resolution process for when you and your neighbour do not agree about the location of the common boundary. Either of you may give a boundary survey notice, which sets out your intention to have the common boundary defined by a licensed surveyor unless its location can be agreed. There is no prescribed notice.

If you engage a licensed surveyor, you are responsible for telling your neighbour the outcome of the survey. In most circumstances, both owners must contribute to the costs of the survey.

Resolving problems: what if we can’t agree?

If your neighbour has responded to the fencing notice within 30 days but does not agree to 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 a last resort.

At all stages in a fencing matter, negotiation and mediation between the parties (without resorting to lawyers and the court system) is preferable. The DSCV (seeDispute 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.

If no agreement is reached after a fencing notice has been given to your neighbour, the Fences Act sets out the procedure for taking the matter to court. An owner may commence proceedings in the Magistrates’ Court for orders about:

the line on which fencing works and any subsidiary works are to be carried out;

the line that is the common boundary;

whether or not a dividing fence is required and whether or not fencing works and any subsidiary works should be carried out;

the nature of any fencing works and subsidiary works to be carried out;

the nature of the fence that constitutes a sufficient dividing fence;

the way in which contributions for the fencing works and any subsidiary works should be apportioned;

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;

that any party cease or discontinue conduct that is unreasonably damaging (or may unreasonably damage) a dividing fence; and

any other matter that the court considers appropriate.

The Magistrates’ Court has published a fact sheet that summarises the procedures to be followed to initiate proceedings in a fencing dispute and how to prepare and serve the relevant complaint. The “Information Guide: Fencing Disputes” fact sheet and a Complaint (Fencing Dispute) Form 5A are available from the court’s website (www.magistratescourt.vic.gov.au).

If, after a complaint has been issued, the other neighbour files a defence, the matter is normally referred to mediation or a 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 to section 6 of the Fences Act and the factors that determine what is a sufficient dividing fence. These factors include the existing dividing fence; the purposes for which the lands are to be used; reasonable privacy concerns; and any policy or code adopted by the local council.

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 an agreement with your neighbour.

Resolving problems: enforcing the agreement

If you reach an agreement with your neighbour using the processes in the Fences Act and a fencing notice, but your neighbour doesn’t do as agreed, or if your neighbour doesn’t do what the court ordered, there are provisions in the Fences Act that can be used to enforce the agreement.

If your neighbour does not do what they said they would do, either within the time specified in the agreement, or within three months of making the agreement, you can carry out the fencing works that are the subject of the agreement and/or recover the money from your neighbour that they agreed to pay.

Also, if the Magistrates’ Court has made an order about your fencing works and your neighbour does not do what they were ordered to do, either within the time specified in the order or within three months of the order being made, you can carry out the fencing works that were the subject of the order or recover money that your neighbour was ordered to pay.

Adverse possession

If an adverse possession claim comes up in the context of a fencing dispute (i.e. if a dividing fence has been in the wrong place for more than 15 years), the owner who has gained a strip of land because of the misplaced fence can bring a claim to that land in adverse possession.

The Fences Act makes it clear that the Magistrates’ Court has the power to hear and determine adverse possession claims that arise in the context of fencing disputes.

Going next door to fix the fence

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. If the fencing works are subject to a Magistrates’ Court order, the court may specify dates and times for access.