FENCES AND TREES

Fences

Fence disputes are the most common type of neighbour dispute. 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
what type of fence is needed.

In Victoria, the Fences Act 1968 ("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.

It is generally advisable that neighbours should attempt to resolve any issues by agreement rather than having the fence 'dispute' escalating into a major, expensive and ongoing issue between them.

You should attempt to reach agreement on:

how much each of you will pay towards the costs
the look of the fence:
height
materials (timber - pine / hardwood, Colour-bond, brick, post and wire etc.)
colours (particularly surfaces that can not be painted such as Colour-bond)
time frames for removal of the old fence
time frames 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)
even down to who gets the 'flat side' on timber fences etc.

If you are not comfortable discussing this with your neighbour, write a letter and place it in their letterbox, detailing your proposals for the new fence.

If you and your neighbour can not agree, the Fences Act provides for a formal process involving a written notice to assist in resolving a fence dispute. This '"Notice to Fence" is a legal document that formally advises your neighbour that you would like to build a new fence and that you would like your neighbour to share the cost.

Although there is no prescribed form, the notice should set out:

where you want the fence to go;
how you want the fence to be built;
what type of fence you want built.

You can easily draft your own Notice to Fence and you do not need a lawyer. Example notices are available online at a number of websites, such as www.fencingonline.com.au/disputes/victoria-notice-02.htm

You do not have to attach a quotation from a fencing contractor, but if you have one it is a good idea to attach a copy to the notice. Fencing contractors are another source of Notices to Fence.

Fence notices can be given personally to the neighbour but it is often prudent to send the notice by registered post.

After one month, 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.

At all stages in a fencing matter, negotiation and mediation between the parties, without resolution to lawyers and the court system, should be seen as preferable. The Dispute Settlement Centre of Victoria regularly assist 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, or it can appoint an arbitrator to make a decision instead. 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;
where the fence is to be built.

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 go ahead and build the fence and get what you were promised from your neighbour. This could involve going to court again.

What if I can't find my neighbour?

If you can't find your neighbour (for example, if the land next to you is vacant), and you want your neighbour to help you pay for a fence you want to build, you should either send a notice by registered mail to the person who is shown as being the owner in your council's rate records (Go to your local Council, in person, and ask for this information for the purpose of serving a ‘Notice to Fence’.)

Maintenance and repair

The rules for maintenance and repair are almost the same as they are for building fences. See the Law Handbook Chapter 10.2 for more information.

If your fence is destroyed or damaged by fire or falling tree due to neglect by your neighbour, the neighbour must pay for the whole cost of the repairs.

Trees

Trees are a common source of dispute between neighbours.

Overhanging branches and encroaching roots have the potential to cause property damage and personal injury in addition to affecting the way you enjoy your property.

Before considering any action, you should talk to your neighbour about the problem and ask them politely to prune the tree, dig up the roots or assist you in the operation.

Self-help is the most common remedy in this situation. You are legally entitled to cut back any branches or roots from a tree which protrude onto your land up to the fence line. You are not allowed to enter your neighbour's land in order to carry out the work unless you have their permission. Anything you cut off your neighbour's tree belongs to your neighbour and should be returned, preferably in a neat and tidy manner.

Self-help is not always a practical option and the services of a tree lopper or other professional may be required in dealing with a nuisance tree.

It is important to be aware that unless your neighbour agrees to contribute to the cost beforehand you may be unable to recover the costs of this work done. Getting a quote for repair and discussing the matter with your neighbour beforehand is preferable.

It is possible to take legal action ordering the neighbour to arrange for the tree to be pruned. Taking the matter to court can be an expensive and time consuming process with unclear outcomes. Court action is likely to adversely affect the relationship between you and your neighbour so this should be considered as a last resort.