When buying a property, you often look to the location, views, amenity and the structure of the house. What is often overlooked is the fence dividing the property with the neighbour. What is unknown is how your neighbour will react if there is a problem with the fence. One of the more common problems people have is a fencing issue with their neighbour. As you would expect everyone has their own perspective and vision about whether a fence is adequate or an eye sore, whether the fence is in need of repair or is sound and most often who should pay for the fence. If there is a fencing issue be it repair, replacement or other, you should always attempt to discuss and resolve the issue with your neighbour. When you can’t, there is specific laws, processes and government bodies set up to help resolve the problem.
In New South Wales, the Dividing Fences Act 1991 (the “Act”) is the legislation that deals with dividing fences between neighbouring properties and the responsibility for the sharing (or not sharing) the cost of fencing work.
What is A Dividing Fence and Fencing Work?
If there is an issue about a fence, the starting point is to understand what is an “dividing fence” and what is “fencing work”.
Under the Act, a dividing fence is a fence separating the land of adjoining owners, whether it is on the common boundary or not. A fence is broadly defined and can include any type of structure include hedges, gates, the foundations that support a fence (but not a retaining wall or a wall that is part of a house/garage or building). When it comes to fencing work, this includes works around the design (including survey), replacement, repair and construction of all or part of a fence.
Who Pays for Fencing Work?
Usually, both you and your neighbour are equally responsible for the cost of a sufficient dividing fence. The test is whether the current fence is sufficient. Sufficiency is contextual and will depend on a broad range of factors including:
- the standard of the existing fence, if any & the condition of the existing fence, if any
- the way in which the land on either side is used/intended to be used
- privacy and other relevant concerns
- the kinds of dividing fences usual in the area & local council and other legal requirements
Just because a neighbour says that fencing work is needed doesn’t automatically mean that the neighbour must agree or otherwise pay for half the costs. In some cases, an existing fence may be sufficient or the fencing works proposed may be unnecessary to ensure that a sufficient fence is maintained.
If your neighbour wants to upgrade an existing fence to a greater standard, the Act states that “an adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence.”
What happens if I can’t reach agreement with my Neighbour?
The Act sets out the process for neighbours to reach agreement for fencing work. Ideally discussion should be had before relying upon the Act. It is often recommended that parties seek out the assistance of a community justice centre to help them “mediate” the dispute before “going legal”.
Assuming that those discussions have taken place and no agreement is reached, a neighbour is entitled to serve upon their adjoining neighbour a “fencing notice”. The terms of the fencing notice usually include the following details:
- that you are giving a Fencing Notice under the ‘Dividing Fences Act 1991 – Section 11’” & your address & your neighbour’s address;
- where you want to do the fencing work, for example, on the boundary line (or somewhere else if it is not practical to build on the boundary line);
- a description of the type of fencing work to be done, including the length and height of the fence and the materials to be used;
- who will do the work; the date the work will start; the date the work will be finished & the estimated cost & how the cost is to be split (usually equally).
Once served you and your neighbour have one (1) month to try and reach agreement (again mediation assistance should be sought). If after that time no agreement is reached, either neighbour can apply to the Local Court or the NSW Civil and Administrative Tribunal (NCAT) for an order.
That is, the Court (Local Court or NCAT) will make a decision about what happens with the fence, the nature of any fencing work and who bears or shares the costs (and in what proportion).
Take Out Points
If you are having issues with your fence consult we can assist. We also recommend that you look to www.lawaccess.nsw.gov.au and www.ncat.nsw.gov.au/Pages/cc/Divisions/dividing_fences.aspx.
For more information contact: Heath Adams Director-Lawyer