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Don’t fence yourself in

Posted on , updated on by snsadmin

To have an amicable, constructive and supportive relationship with the next door neighbour is perhaps more valuable than living in the house of your dreams but next door to the nightmare neighbour.

 

The relationship with the neighbour must be maintained and there are the common disputes, which unless resolved quickly, can lead to the souring and destruction of the relationship with the neighbour.

 

Common disputes with neighbours

These common disputes are well known: overhanging and encroaching trees, unacceptable noise, yapping dogs and the fencing dispute.

 

This article deals with a fencing dispute.

 

The legislation

State legislation deals with the fencing obligations of adjoining property owners – Fences Act 1975 (SA), Dividing Fences Act 1961 (WA), Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Dividing Fences Act 1991 (QLD), Dividing Fences Act 1981 (ACT), Northern Territory Fences Act 2015, Fences Act 1968 (Vic), Boundary Fences Act 1908 (Tas).

 

This article advises on the law in Victoria and found in the Fences Act 1968, as amended in 2014.

 

The Fences Act 1968 (Vic) (the Act) provides the process in Victoria for the replacement of a dividing fence.

 

A dividing fence is a fence which marks the boundary between two or more adjoining properties.

 

Replacement of a dividing fence

The Act defines when the dividing fence is sufficient and provides the means by which adjoining property owners are able to determine when a dividing fence is not sufficient and should be replaced.

 

The process

The Fences Act provides the adjoining property owners are equally responsible for a dividing fence between the adjoining property owners.  Usually the adjoining property owners will contribute in equal shares to the dividing fence.  The process sets out the rules for replacing the dividing fence and is best explained when there is agreement and when there is no agreement between the adjoining property owners.

 

If there is agreement

When there is agreement, one neighbour will initiate discussions with the other neighbour.  Both (or more) neighbours will agree the fence is firstly a dividing fence within the terms of the Act, second, it is not a sufficient dividing fence (now referred to as  a fence) as is set out in the Act and three, it must be replaced by a new fence.  One (or more) neighbours will obtain a quote (or quotes) from a Fencing Contractor.  One (or more) neighbours will serve a Fencing Notice, which sets out the proposal for the repair of the fence or the removal of the fence and erection of a new fence.

 

The quote (or quotes) is attached to the Fencing Notice and served on the neighbour (or neighbours) requesting the response in 30 days.

 

When there is total agreement between the neighbours, it is not necessary to serve a Fencing Notice, the agreement of the neighbours is recorded by each neighbour signing the quote for the repairs or new fence.

 

When happens when there is no agreement?

When there is no agreement, for example, when the neighbour does not respond to the Fencing Notice, the initiating neighbour may:

 

(a) Proceed with the fencing works, without the neighbour’s agreement, and recover the sum to be paid by the neighbour in an action in the local Magistrates’ Court of Victoria (the Court); or
(b) Issue the action in the Court and seek an Order of Court that the initiating neighbour may proceed with the fencing works and the contribution that is to be paid by the other neighbour.

 

A response does not always indicate there is agreement, for example, where the adjoining neighbour proposes the erection of a different fence than is set out in the Fencing Notice (the quote will set out the details of the proposed fence), the initiating neighbour will then negotiate the agreement for the new fence.  If the negotiations do not produce a satisfactory agreement allowing the initiating and adjoining neighbour to proceed with the repairs or new fence, the initiating neighbour may issue the action in the Court, as set out above.

 

Who pays for the fence when the neighbours agree the fence must be replaced but do not agree on the standard of the new fence?

 

The Pre-Amendment Act provided separate processes when there was (1) the erection of a new fence and (2) the maintenance and repair of the existing fence.

 

The Act was amended in 2014 and there is now a single statutory process for all fencing works (including all related works, which includes the maintenance and repair of the existing fence). The statutory process now covers the erection of a new fence or the repair of the existing fence. The amendment to the Act has led to the simplification of the process.

 

The other major change post-amendment is that the contribution to the new fence by the each neighbour is altered.  The Pre-Amendment Act required the neighbours pay equally for “a fence sufficient for the purpose of both occupiers”.  What was deemed sufficient by the neighbours was not set out in the Act.

 

Post-amendment the neighbours:

1. Must contribute in equal proportions to a “sufficient dividing fence”;
2. Define what is a sufficient dividing fence; and
3. Provides where one neighbour wishes to erect a dividing fence to a standard, which exceeds what is a sufficient dividing fence, then in that situation the neighbour requiring the non-standard fence will pay the difference in cost.

 

If you issue an action in the Court

If there is a fencing dispute, which proceeds to an action in the Court, the Court will refer the dispute to the Dispute Settlement Centre of Victoria, where there will be a conference or mediation (the mediation) of the neighbours with a Court official. The mediation is intended to settle the fencing dispute and decide the terms on which the new fence will be erected.

 

Are fencing disputes complicated?

The most serious complication is when the neighbours cannot agree on the common boundary between the adjoining properties.  Frequently, the fence to be repaired or replaced is not on the precise common boundary.  When a Fencing Notice is issued and there is no agreement by the neighbours, the disagreement is as on the location of the precise common boundary.  The neighbours obviously must agree on the precise location of the common boundary before agreeing on the repair of the existing fence or the erection of the replacement fence.

 

In these circumstances, a Boundary Survey Notice is served setting out the dispute with the existing common boundary and giving notice that a Land Survey (the Survey) is required.  The 30 day period following the service of the Fencing Notice is suspended and is replaced by a 30 day period, which follows the service of the Boundary Survey Notice.  If the 30 day period expires and there is no agreement on the boundary, or the Survey to be carried out on the adjoining properties, the neighbour who served the Boundary Survey Notice may proceed to organise the Survey.  When the Survey has been completed, and there is agreement on the common boundary, the Fencing Notice will proceed.

 

The costs of the Survey will be determined by whether the existing boundary is correct or the boundary must be altered.  If the Survey confirms that the existing boundary is correct, the neighbour instructing the Land Surveyor must pay the costs of the Survey.  If the Survey determines the boundary must be altered, the neighbours of the adjoining properties will equally pay the cost of the Survey.

 

There are further complications in with respect to the fencing obligations of neighbours which are not set out in the above summary.

 

Adverse possession

This will determine the extent of your property.  If the existing fence is not erected on the common boundary and this is determined after the fence has marked the boundary for a substantial number of years, there may be a dispute between the neighbours caused by Adverse Possession.

 

The law of Adverse Possession states that where one person has intentionally used another person’s land without objection by the owner of the land, the person using the land will acquire ownership where the use is for more than 15 years.

 

Clearly, where there is a fence on your property that is not in alignment with the boundary as is set out in the Certificate of Title, the potential for an Adverse Possession Claim arises.  This is most serious.  If you suspect a fence on your property is not in alignment with the boundary, it is necessary that you take immediate action.

 

The Adverse Possession period used to be 30 years. The law in Victoria was recently amended and the Adverse Possession period has now been reduced to 15 years.

 

A claim for Adverse Possession may now be brought in the Magistrates’ Court of Victoria using an application under the Fences Act. The use of the Magistrates’ Court is expected in most cases to result in a reduction of the expense of these complex actions.

 

It is absolutely essential to seek legal advice such is the complication of an Adverse Possession matter.

 

If you require legal assistance in this complex area, please contact Blair Williams at our office.

 

This article provides information that is general in nature and is not a substitute for legal advice.

Changes to the Building Act & You!

Posted on , updated on by snsadmin

Building Disputes and the Building Legislation Amendment (Consumer Protection) Act 2016 (“BLAA”)

Changes to the Building Act 1993, by the Building Legislation Amendment (Consumer Protection) Act 2016 (or “BLAA”) commenced on Monday 4 July 2016. It amended the Building Act 1993 (BA) and the Domestic Building Contracts Act 1995 (DBCA).

The main changes so far are as follows:

Appointing Building Surveyors

Builders are no longer allowed to appoint a Building Surveyor.  This amendment has been introduced to stop some Building Surveyors from a premature certification of mandatory stages for builders who may be their friends.

Building Surveyors will also now have to be very careful in carrying out their functions and from being engaged in a situation that may give rise to conflict of interests.

There will be a new check list that Building Surveyors must complete.  This check list will have to be lodged with the local Council.  Non-compliance with this requirement will cause the Surveyors to be fined.

Directions To Fix Work and Written Undertakings

The Authority (Victorian Building Authority) may issue a direction to a builder to:

(1)    Fix work;

(2)    Carry out work in substantial compliance with the Building Act; or

(3)    Stop work.

 

Any such direction should be either complied with or appealed to the Building Appeals Board.  An extension of time can be sought to comply with the direction.  Non-action in respect to any direction can result in a fine up to $75,000.

Written undertakings may be provided by a builder to do or not do something.  If a written undertaking is provided by a builder, it becomes public record.  Non-compliance with a written undertaking can result in prosecution of the builder.

 

Owner-Builders’ responsibilities and Regulations for Owners generally.

Owner-Builders can be audited by the Authority to ensure that the works are carried out properly, in compliance with the Building Act and its Regulations, and without posing any danger to anyone.

There are new penalties that could be imposed on the Owners who allow building works to be carried out on their property before a Building Permit is issued.  The penalties are high.

The above information completes the changes to the Domestic Building Contracts Act and the Building Act that are currently in force.

There will be further amendments, the most significant one that will come into force in February 2017 is as below:

Before a dispute can proceed to VCAT Under the new act, to resolve a domestic building work dispute, a certification of conciliation is required to bring proceedings to VCAT. [DP to link back to old building disputes / myth articles].

Cannot Issue at VCAT for a Domestic Building Work Dispute without a Conciliation Certificate

(s.56 DBCA)

The major change being that proceedings in respect to a domestic building dispute cannot be issued at VCAT unless accompanied by a Conciliation Certificate issued by the Chief Resolution Officer (“CDRO”) for Victoria or one of what is being termed the “experienced dispute resolution officers” (“DROs”) (see new s56 & s57A DBCA).

All domestic building work disputes (as defined s44(1), DBCA) relating to any “domestic building work matter” (as defined in s44(2) DBCA) are to be referred to the CDRO for an assessment under s45A of the amended DBCA as to whether not the dispute qualifies for conciliation under the amendments.

The CDRO has been appointed. She is Gina Ralston (“Ralston”). She and her team of “experienced dispute resolution officers” (“DROs”) will initially asses all building disputes (s45A, DBCA). The DRO can call for evidence (s45B, DBCA), accept or reject the referral (s45C, DBCA)

The CDRO must give written notice of the decision to either accept or reject a referral (under s45C DBCA) and give notice of the decision to accept or reject the referral for conciliation under, S45E(1) DBCA) within 10 business days after making the decision!!

HOW LONG WILL MAKING THAT DECISION TAKE?

NOTE – it will be necessary to amend domestic building contracts to include a right to suspension of the building works and the extension of time for the completion of the building works for the period between the referral and the issue of the decision under S45E(1) DBCA and up to and including the implementation of any decision or direction resulting from a conciliation.

A certificate is to be issued if the dispute is not resolved by conciliation (s46D, BLAA) or if an agreement is recorded (s46F, DBCA).

NOTE – Any such conciliation agreement should always include an agreement as to the period for which the building period is to be extended and include a period for the builder to organise trades and materials and return to site.

A Domestic Building dispute is defined as between an owner, a builder, any other Building Practitioner, Sub-contractor, or Architect in relation to domestic building work.

When making an application to the Chief Dispute Resolution Office, section 45 of the DBCA requires you to specify the particulars of the dispute, in addition to other relevant information and documents.

WHAT DOES THIS MEAN? – It means that you need to prepare for the Conciliation if it proceeds and carefully, and in as much detail as if it were a proceeding in a Court or at VCAT – and that’s where we can help.

WHY SO MUCH PREPARATION? – Because the DRO can issue a certificate stating that a party did not participate in good faith s46E,DBCA), can issue a stop work notice (s.47A DBCA), recommend an assessor’s report as to the building works (s48,DBCA) issue a dispute resolution order (s49 & 49B, DBCA) including the payment of money.  There is also a right to appeal to VCAT for review of a dispute resolution order – which must be within 20 business days after the date of the order and on limited grounds.

To give yourself the best chance of settling the dispute and avoid going to VCAT – speak with us as soon as any “dispute” is referred to the CDRO for assessment for conciliation.

The Conciliation may not proceed if you establish that the dispute does not satisfy the requirements in section 45 – WHAT IS THE REAL DISPUTE?

Proper preparation is far better than never ending discussion and expense.

 

This article provides information that is general in nature and is not a substitute for legal advice.

Overcoming Economic Abuse

Posted on , updated on by snsadmin

Did you know that economic abuse is a form of family violence?

Section 5(1)(a)(iii) of the Family Violence Protection Act 2008 (Vic) (“the Act”) states that family violence is behaviour by a person towards a family member of that person if that behaviour is economically abusive.

Section 6 of the Act defines economic abuse as “behaviour by a person (the first person) that is coercive, deceptive or unreasonably controls another person (the second person) without the second person’s consent in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour OR by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or the second person’s child, if the second person is entirely or predominantly dependent on the first person for financial support to meet those living expenses.”

Some examples that the Act provided are:

  • Coercing a person to relinquish control over assets and income;
  • Removing or keeping a family member’s property without permission, or threatening to do so;
  • Disposing of property owned by a person, or owned jointly with a person, against the person’s wishes and without lawful excuse;
  • Without lawful excuse, preventing a person from having access to joint financial assets for the purposes of meeting normal household expenses;
  • Preventing a person from seeking or keeping employment;
  • Coercing a person to claim social security payments;
  • Coercing a person to sign a power of attorney that would enable the person’s finances to be managed by another person;
  • Coercing a person to sign a contract for the purchase of goods or services;
  • Coercing a person to sign a contract for the provision of finance, a loan or credit;
  • Coercing a person to sign a contract of guarantee;
  • Coercing a person to sign any legal document for the establishment or operation of a business.

 

In real life….

We have acted for a number of clients whose spouse/partner was the sole income-earner of the household and the parties relied on the one salary deposited into a joint account that both parties had access to. Just prior to separation, their spouse/partner transferred all/most of the money from the joint account and deposited it into an account in their own name.

Consequentially, the unsuspecting spouse/partner was left with no money/very little money and was in a financially desperate situation as they were dependent on their spouse/partner for money. The perpetrating spouse/partner then had financial control and therefore leverage over the other spouse/partner to force them to agree to an unjust and inequitable settlement.

This is one regular consequence

In these situations, at least 7 days may have passed from the time a person makes an urgent spousal maintenance application to the Family Court/Federal Circuit Court to the time the matter is listed for hearing date before a Judge. Imagine if this happens to you. What would you do in the meantime if you need money? Especially if you have children to feed?

 

How to reduce the chance of this happening to you

Prevention is better than cure. No one enters into a relationship expecting to separate. BUT you should never say never.

We recommend that every person in a relationship sets up their own personal bank account (that only you are able to access) as a safeguard sooner rather than later in case you need the money for a rainy day – just like insurance but better.

You may or may not choose to tell your spouse/partner about the account. We recommend that you deposit small amounts of money into that account as often as you can. This way, IF you ever separate, you’d have money saved to live on (and take care of your children) whilst you negotiate a property settlement with your spouse/partner.

 

What to do if you, or someone you know, is a victim

If you are the victim of economic abuse or know someone who is in that situation, please contact us to seek legal advice

You’ll need to have records showing what money has been taken by your spouse/partner to prove your case. Then we’ll discuss taking the matter to a Magistrate/Judge.

A common belief is that if you have no money you are unable to obtain legal advice/take legal action against your spouse/partner. That is not true.

We will be blogging about litigation funding and Barro Orders soon – so watch this space to learn more.

This article provides information that is general in nature and is not a substitute for legal advice.

Developing your suburban block

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Putting two dwellings on one suburban block needs an agreement between the owner, the developer and/or the builder which sets out each person’s contribution, role and expected outcome.   Sometimes, but not always, the developer is the builder.

Remember the developer and/or builder wants to make a profit and you, the owner, want a new house. Therefore, it’s important to remember that throughout the entire build, you’ll want to protect the standard of the construction you get and still leave enough profit in it for the developer.

The joint venture agreement should reference both a fully detailed building contract (what kind of taps do you want?) and a separate contract for the sale of land.

 

Remember, land is cheapest when it is vacant.

The usual agreement is for the developer/builder to pay all costs when the owner provides the land for the development. Make sure the developer pays the cost of the sub-division, planning and building permits and costs of construction. Once you start to build, costs and potential disputes may escalate. You and your builder have certain rights when it comes to your project.

Your contract should help you avoid a number of hazards you may never have considered. It’s important that detailed specifications are included as part of the building contract. These may include:

  • Who’s going to pay your rent and storage costs if the builder goes belly-up during the development and can’t finish the build?
  • What carpets and bench tops do you want in your new house?

If you are given documents for this type of development, we can help you make sure you are protected.

We understand domestic building contracts and have been helping developers since 1979 – we can help you too! Speak with us today.

 

This article provides information that is general in nature and is not a substitute for legal advice.

How are you going to get paid?

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The role of your Terms of Trade is to be successful when you sue a client who hasn’t or will not pay.

When starting your own business, there’s one question you need to answer: How are you going to get paid?  Having your own Terms of Trade sets out the basis of you relationship with your clients.  Set up your Terms of Trade, have them on your website and in printed form on reverse side of your purchase (or works) order forms.

The big mistake most business owners make when establishing their own Terms of Trade is to resort to copying someone else’s Terms of Trade. Using a precedent is a good idea as a start but you need to tailor your Terms of Trade to what you do.

When you discuss services with a client – this is an oral contract. It can be proved upon exchange of emails i.e. confirmation in writing. A faxed or emailed purchase order will also confirm the oral contract.

Sometimes to prove an oral contract over time, if you are dealing with the same person, you can establish a “Course of dealings”, which may be substantiated by emails, quotes, purchase orders which establish the contractual relationship and the terms of that relationship.

 

The perils of simply copying someone else’s Terms of Trade from their website.

It is only when you try and sue on these Terms of Trade that you discover any flaws in them. The best and riskiest way to test if your Terms of Trade work for you is to issue proceedings/litigate, that is, to sue a client for an unpaid invoice.  Even your own Terms of Trade will evolve over time and should be reviewed from time to time as you learn about their practical operation.

 

Remember the K.I.S.S principle:

Keep It Simple, Stupid – this applies to Terms of Trade. 

The role of your Terms of Trade is to be successful when you sue. What you need to be successful is the creation of a contract that can be sued on. This can be your quote with simple terms and a purchase order as confirmation of the agreement of contract. We can help you with that.

 

 

What will establishing your own Terms of Trade cost?

As any good Lawyer will tell you – “it depends”. The answer is, any written confirmation of your agreement is useful in litigation.

You can liken it to the cost of comprehensive insurance and the excess you have to pay – how may claims you ever had on your comprehensive policy?

How many bad debts have you had? Most businesses don’t have a lot of bad debt (if they do – they don’t last), but if you have to sue someone you need to give your business a good chance of success by having simple Terms of Trade.

Every set of Terms of Trade are a continuing work in progress. It will depend on the nature of your business and the marketplace that you are operating in. Every commercial area has its own rules of conduct.

Still unsure if your Terms of Trade will protect you? Speak with us today.