THE GREAT DIVIDE

There is scope for disagreement with your neighbours about many things, one issue is often the dividing fence. In general, owners of adjoining land which is not divided by a fence are liable to contribute equally to the cost of a dividing fence.

The first step
If you can come to some agreement with your neighbour as to the construction of a fence then you should record that agreement in writing. Such an agreement does not need to be overly complex but just state in simple terms what is proposed, for example, the type of fence, the estimated cost, and the contribution to be made by each party. The agreement should then be signed by both parties. A written agreement is easier to enforce.

What if you don’t agree?
The Dividing Fences Act assists land owners obtain a contribution from their neighbour to build or repair a fence. If you have not been able to reach an agreement you can issue your neighbour with a Notice to Fence which will include all the relevant details of the sort of fence you would like to construct. If your neighbour will still not agree to contribute then you have recourse to either the Small Claims Tribunal or the Magistrates Court, depending on the value of the proposed fence. It is important to remember that if you cannot reach an agreement with your neighbour do not build the fence. The court has no power to order your neighbour to reimburse you after the fact.

What if the fence is in the wrong place?
If, when purchasing a property or otherwise, you discover that the neighbours fence is encroaching onto your land, do not tear down the fence if you want to recover the cost of doing so. The Act provides certain steps to take if you and your neighbour do not agree where the fence should go.

Repair
If an existing dividing fence needs repair, the owners of land on either side must contribute equally to the cost, unless either land owner is responsible for the damage. Once again, if you cannot reach an agreement about the repair, you will also be able to pursue a contribution from your neighbour from the court, but only before the repair work is carried out. There are a couple of exceptions: if a dividing fence has been constructed partly by one owner and partly by another then each shall bear the cost of repairing the part constructed by him/her. Also, in specific emergency situations, the owner of land on either side can immediately repair the fence and will be entitled to recover half the cost of doing so from the adjoining owner.

Contributions by a landlord and tenant
Tenants can be liable to contribute to the construction or repair of a dividing fence under the Act in the following proportions:
• For a lease term of less than 5 years, the whole contribution will be borne by the landlord.
• For a lease term of 5 to 7 years, ½ of the contribution shall be paid by the landlord and ½ by the tenant.
• For a lease term of 7 to 12 years, the landlord and tenant shall pay half the contribution each.
• Finally, for a lease term of 12 years or more, the tenant will bear the cost of the whole contribution.

An additional point…
You will need to check with the Local Council in the following circumstances:
• if the fence will be higher than others in the neighbourhood
• the fence is to form part of a retaining wall
• there could be any restriction to water run-off
• the fence is to have some unusual feature.
It should be noted that Commonwealth, State and Local Government are not bound by the Dividing Fences Act and the owner of land which adjoins Government owned land will usually have to bear the whole cost of the fence.

Conclusion
The important point to remember is that you should not simply build a fence and try to recoup half the cost from your neighbour later. In almost all cases your neighbour cannot be made to contribute to the cost after the event.
So keep these provisions in mind and maintain good relations with your neighbours!

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