Fencing disputes often involve relatively small monetary amounts, but they affect thousands of Victorians every year and can have a serious effect on everyday life.
The Fencing Act 1968 (Vic) as amended by the Fences Amendment Act 2014 (Vic) (together known as the “Act”) contained rules about who pays for a dividing fence, the type of fence to be built, notices that neighbours need to give one another and how to resolve disputes that come up when discussing fencing works with neighbours.
A dividing fence is a fence built to separate two pieces of adjoining land. It may or may not be located on the common boundary between the pieces of land e.g., the dividing fence might not be located on the common boundary as there is a waterway obstruction or significant tree on the common boundary.
If you are a property owner, you and your neighbour have equal responsibility for the dividing fence between your properties. If the fence needs to be repairs or replaced you should start by talking to your neighbour informally about the dividing fence. If you both agree that fencing work needs to be done, the type of fence to be constructed, the contractor to be used and the price, then you can proceed with the fencing works. Always get your neighbours agreement in writing.
If you do not have your neighbour’s agreement to the fencing works, you cannot go ahead with the dividing fencing works unless you follow the process in the Act. This means that you need to give your neighbour a notice that contains information about the fencing work you are proposing.
What is a Fencing Notice?
A fencing notice is a formal document that sets out a proposal for construction or repair of a dividing fence or other works that need to be done. The fencing notice must include a description of the works to be carried out, the contractor to be used, an estimate of the costs and the contribution proportions. A fencing notice can be handed to your neighbour personally, sent via the post or emailed to your neighbour.
If you have given a fencing notice to the person who owns the neighbouring property, but 30 days have passed and they have not responded to the notice, you can proceed with the fencing works without your neighbour’s agreement and recover their contribution to the fence by bringing an action in the Magistrates Courts of Victoria.
Who Pays for a Dividing Fence?
Generally, owners of adjoining land must contribute in equal shares to a dividing fence. The standard of fence that you must contribute to is a sufficient fence. What constitutes a sufficient fence will depend on the circumstances. For example, a sufficient dividing fence in a residential area might be a 1.8 metre paling fence, whereas a sufficient fence for a rural property might be a wire and post fence.
If you or your neighbour wants a dividing fence that is of a higher standard than a sufficient dividing fence (a higher fence or one made of more expensive materials), the person who wants the higher standard fence pays the difference in costs between a sufficient dividing fence and the higher standard. Alternatively, if you agree to the construction of a higher standard fence on the common boundary, then the costs of the higher standard fence can be split evenly.
Renting a Property
In most cases the owners of the property is responsible for repairing or replacing a fence. A tenant may have to contribute in commercial situations where they have a lease that has five years or more left before it expires. If the tenant has between 5 and 10 years remaining on their lease, they must pay half of the owners share of the fencing costs. If the tenant has more than 10 years remaining on the lease, the tenant must pay the owners full share of the fencing costs.
The landlord may ask the tenant to pay for damage to a fence if they caused the damage.
Urgent Fencing Works
The Act is flexible about the circumstances that may necessitate urgent fencing works. However, if fencing works need to be undertaken urgently and it is impracticable to give a fencing notice, an owner may undertake the work without giving the required fencing notice.
If an owner undertaken urgent fencing works then wishes to seek a financial contribution from the adjoining owner, they must give an urgent fencing notice which sets out matters including the nature of the works that were undertaken, how much they cost, the amount being sought as a contribution to the fence and the reason for the urgency.
The Magistrates’ Court has the power to make orders in respect of the line on which fencing works are to be carried out, the line that is the common boundary, whether or not a dividing fence is required, the nature of the fence, the person to carry out the works, the liability of a person to contribute to the works, the way in which contributions are to be apportioned, time frame for the works to be undertaken and may order certain conduct cease or discontinue that might unreasonable damage a fence.
The Act sets out a process for owners to resolve boundary disputes that arise in the context of fencing works. Either at the same time as, or after, a fencing notice is given, one owner (“Owner A”) may give the other owner (“Owner B”), a boundary survey notice to the effect that if the common boundary is not agreed, Owner A intends to have the boundary surveyed. In response to receiving the boundary survey notice, Owner B may:
- agree to Owner A’s view about the location of the common boundary;
- express their own view about the location of the common boundary, or
- engage a licensed surveyor to define the common boundary.
If, after 30 days from the date the boundary survey notice is given, the owners have not agreed about the location of the common boundary and Owner B has not engaged a licensed surveyor to define the common boundary, Owner A may themselves engage a licensed surveyor to define the common boundary.
Costs of the survey are generally to be paid equally by the owners.
Adverse possession law allows a person to claim title to someone else’s land if they have continuously occupied that land for more than 15 years without the owner’s permission. After 15 years, the original owner loses their right to bring an action to recover their land and their title to the land is extinguished.
An adverse possession claim may come up in the context of a fencing dispute 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 Act clarifies that the Magistrates’ Court has the power to hear and determine adverse possession claims that arise in the context of fencing disputes, but otherwise the law applying to the adverse possession claim remains the same.
For further information on fencing notices or fencing disputes, please contact us at [email protected] or on 5303 0281.
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The information on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances.
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