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 ("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 (see: "Resolving problems", above).
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:
- height;
- 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 go over and 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, detailing your proposals for the new fence.
If you and your neighbour cannot agree, the Fences Act provides for a formal process involving a written notice (a Notice to Fence) 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 to Fence should set out:
- where you want the fence to go;
- how you want the fence to be built; and
- 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. 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. However, sometimes the issuing of a Notice to Fence can cause a dispute to escalate, so depending on the situation, it is advisable to try the personal approach first.
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. Further advice can be sought from a community legal centre. To find your local legal centre, see: Chapter 2*4 Advice Directory.
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", above) 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, or it can appoint an arbitrator to make a decision instead (s.7(2)). 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 form are both available from the court's website at www.magistratescourt.vic.gov.au (follow the links from "Publications").
If after issuing a complaint the other neighbour files a defence, the matter is normally referred to mediation 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 contactors and other documents can assist the Magistrate. In making a decision, the court must look at what sort of fence is usually built in the neighbourhood. It would look at the type of material ordinarily used, the usual height, and perhaps even the colours that they are painted or stained.
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.
Keep in mind that if you have to involve lawyers in your case the cost of going to court will probably exceed the amount you are trying to get from your neighbour. It is best, therefore, 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 go ahead and build the fence and get what you were promised from your neighbour. 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.
The thing that your neighbour did not do must be more than just a minor thing.
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 send a Notice to Fence 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). 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 (s.9(1)).
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 (s.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.
A neighbour who thinks that the court order was unfair can go back to the court and try to get the order changed. This must be done within one month of you giving the copy of the order to them (s.9(7)).
This whole procedure can be quite expensive and unpleasant, so you would want to think very carefully before doing it. If your neighbour doesn't show up, you will be left having to pay legal costs, as well as the cost of building the fence.
The rules for maintenance and repair are almost the same as they are for building fences.
If you think that your fence needs to be fixed up, 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 a Magistrate can decide on 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 it 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.
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. If the government sells or lease the land to someone, you can get back half the cost of the fence from that person (s.12).
The 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 | Nothing |
| 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 |
As very few people lease a house for more than three years at a time, most tenants will probably never have to pay for a fence.
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FENCES :: Last updated: Wed Jul 1st 2009