The ideal situation for most of us when moving into a property is that our neighbours will be wonderful people that we can invite over for a BBQ, and have a drink with. Luckily for many of us, we will have a good relationship with our neighbours, however, issues may still occasionally arise, and one possible area where disagreements may occur is if work needs to be done to shared fencing. Some of the questions that may need to be asked in such a scenario are: Who actually decides if fencing work needs to be done? Also, if repairs do need to be done, what are the formalities? And perhaps most importantly, how are the costs divided in relation to repairs? There are a number of general things to be aware of when answering the aforementioned questions, and keep in mind, the laws may differ where you live.
What is a fence?
It might be a little inane to have legislation outlining what is a dividing fence, but yes, such laws do exist, and it’s important that a definition of what is a dividing fence is outlined in statute. Turning to the Dividing Fences Act 1991 (NSW) (the NSW Act) as our legislative example, s 3 states that a dividing fence “means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary.”
Section 3 of the NSW Act also broadly defines a fence as a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes:
- any gate, cattlegrid or apparatus necessary for the operation of the fence;
- any natural or artificial watercourse which separates the land of adjoining owners;
- any foundation or support necessary for the support and maintenance of the fence.
Who is responsible for the costs associated with the fence?
Generally speaking, the adjoining owners should share the costs in relation to a sufficient dividing fence.
In the case where a fence needs to be built or repaired, the New South Wales Act does not really make a distinction. However, if a fence does need to be repaired, it’s best to reach some sort of an understanding with a neighbour through a fencing agreement.
Section 11 of the NSW Act can require a person to notify an adjoining owner to contribute to the carrying out of any fencing work by serving notice in writing. The notice to carrying out fencing work can specify:
- the boundary line on which the fencing work is proposed to be carried out or, if it is impracticable to carry out fencing work on the common boundary of the adjoining lands, the line on which it is proposed to carry out the work;
- the type of fencing work proposed to be carried out;
- the estimated cost of the fencing work;
- the description of land in a notice need not particularly define the land if it allows no reasonable doubt as to what land is referred to in the notice;
- the owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions. In such a case, the notice is to state the proposed proportions.
Section 11(5) of the NSW Act states that an adjoining owner is not liable for the costs associated with the work if it is carried out before notice is served, or carried out after the service of the notice, and before an agreement is reached, or before a determination has been made either by the Local Court or local land board.
What if one owner is responsible for the damage?
An owner of an adjoining fence may be liable for the full costs of the fence if they are responsible for the damage caused either deliberately, or negligently. Additionally, the owner may also be responsible for the costs associated with the damage if another person was the cause of the damage who entered the land with their express, or implied permission.
Perhaps the best approach to ensure that future problems may be minimised is to put everything in writing with a neighbour before undertaking any work associated with dividing fences.