Fencing disputes – when you and your neighbour can’t see eye to eye

Fencing disputes with your neighbour are quite personal and can be very upsetting if they get out of hand. If you are in disagreement with your neighbour about your fence needing to be replaced, fixed or about what kind of dividing fence to construct, you want the matter resolved as quickly as possible.

What is the law around fencing disputes?

The dividing fence between you and your neighbour is considered joint property (whether on the boundary or not), so you both have the same rights and obligations around maintenance and decision making. Generally, the cost of building a new fence, or repairing your fence is split 50/50 between you.

But! This is may not be the case if…

  • You disagree about whether the fence does or doesn’t need to be replaced;
  • You disagree about the type of fence to build, or how expensive the fence should be;
  • One of you has damaged the fence.

You and your neighbour need to agree to any changes made to the fence, or follow the right legal process before conducting any repairs or building work. Otherwise you will not be entitled to require your neighbour to pay their half of the cost.

Usually, the new fence should be built to replace the old one – the same kind of fence. If you or your neighbour wants a more expensive fence then that person has to pay the difference in cost.

What should I do if we just don’t agree?

Firstly, get at least three quotes from licenced fencing contractors so that you and your neighbour can look at the practical options available. See if your neighbour will negotiate with you and come to an arrangement.

If there is no movement, then send a formal Notice to Fence via registered post together with the quotes. Once your neighbour receives this they have 30 days to respond:

  • If they agree then you and your neighbour pay as per your proposal 50/50;
  • If not, further negotiations have to be made;
  • And if they do not respond at all then you can build the fence/repair it and then begin an action in Court against your neighbour to recover their share of the cost.

Obviously – taking action against your neighbour is a last resort option – it will cost, and only increase tension.

If my neighbour does not agree to my proposal as per the Notice to Fence:

If you and your neighbour are unable to sort this out yourselves, there is free and confidential mediation available through the Dispute Settlement Centre of Victoria.

If your neighbour is not willing to participate in mediation, it may be worthwhile to speak to Jess and we can write your neighbour a legal letter compelling them to work towards coming to an agreement with you, and avoid Court.

If the fence needs to be repaired urgently:

In extreme situations – where your fence has been destroyed and must be repaired or replaced immediately you are able to do so; and send your neighbour an Urgent Fencing Notice. However avoid doing this if at all possible – if your neighbour is not happy about the fence you construct you may end up in Court.

As is always the case when it comes to disputes, the best thing is to come to some agreement with your neighbour. If we can help with this by organising your notice and giving your neighbour a nudge in the right direction please give Sinclair + May a call.

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. 

Published May 25, 2018

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