Don’t fence yourself in

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.