The Dividing Fences Act regulates building and repair of dividing fences in Queensland in certain cases.

In summary:

1. The agreement of your neighbour is NOT required if you propose to build a new fence inside your boundary, ie entirely on your own land and at your expense.

If you build a fence on your land (away from the boundary), the law of "adverse possession" may one day operate to divest ownership in the land between your fence and the true boundary to your neighbour if they subsequently occupy that strip of land for a length of time.

3. Before building a boundary fence:

(a) you should discuss and agree with your neighbour the type of fence, the cost of the fence and the boundary to be fenced before you start work;

(b) the agreement you reached must be in writing if you wish to enforce it later;

(c) if no agreement is reached, you can serve your neighbour with a written "notice to fence" that sets out information about where the fence will be built (the boundary), the kind of fence you want to build, a plan for the fence, including the cost of the fence, how the cost will be paid, and how the work on the fence will be done. Two quotes should accompany the notice;

(d) a notice to fence can be sent by registered post to your neighbour or given to any person over 14 years of age at the neighbour's last place of work or residence.

(e) your neighbour has one month to agree to fence;

(f) if you build a fence without giving your neighbour the notice to fence, the Dividing Fences Act does not apply and you cannot recover any money from your neighbour towards the cost;

(g) if you pay for all of the fence, you do not need your neighbour's permission to build a new fence on the boundary, but it would be prudent to inform your neighbour of your intention to do so;

(h) if you do not wish to pay for all of the fence, but your neighbour does not agree with the notice to fence, you can attempt to mediate the dispute and, if that fails, you can go to the Small Claims Tribunal (for claims less than $7500) or to the Magistrates Court for claims over $7,500;

(i) the Small Claims Tribunal or Magistrates Court can make orders about the type of fence to be built (usually the "standard" for the area), who should construct it, the amount to be paid by each neighbour (usually shared equally for a standard fence), where and when the fence is to be built, and court costs;

(j) a "standard" fence is a fence which is usual for your local area;

(k) you cannot appeal the decision of the Tribunal or Court; and

(l) if the court order is not followed, the person wanting the fence built can build it and then take court action to recover the cost from the neighbour.

4. In relation to a boundary fence that needs repair:

(a) if the repair cost would be more than the cost of a new fence then the rules are the same as building a new fence, however, the cost of demolishing the old fence should be included in the quotes obtained;

(b) if your fence can be repaired and the neighbour refuses to pay towards the cost you must give them written notice to repair with two quotes for the costs of the repairs, and ask them to pay half;

(c) if your neighbour does not respond within one month of your written notice then you can repair the fence and then recover the cost from your neighbour.

(d) if the dividing fence is destroyed by an accident then you can repair the fence immediately without notifying the other owner. The cost of the repairs is shared equally and you can take the neighbour to court if they refuse to pay. Accidents include damage caused by cyclones, floods, lightning, fires, and storms.

(e) if you were responsible for the damage to the fence by your negligence then you will have to pay for the cost of repairing the fence.

5. If the dividing fence is also a pool fence:

(a) The neighbour who is not the pool owner can still be forced to pay towards the cost of the dividing fence, but only to the value of half the cost of a standard fence;

(b) if both you and your neighbour want a dividing fence to act as a pool fence because you both have pools, then the cost would be shared equally; and

(c) if you need to alter the existing fence because of local council laws, then you as the pool owner will have to pay that cost, unless the fence was in need of replacement or repair.

6. In the course of building or repairing a fence under the Act, the person building or repairing the fence can enter the neighbour's property and do the work.

7. Local council laws and building codes usually also apply and should be consulted before any fence is repaired or constructed.

8. State, commonwealth, and local Governments are not bound by the Dividing Fences Act. This means that if you own land next to government or council-owned land, you will usually have to pay the whole cost of the fence.

Inviting your questions or comments.

Michelle Lember
Partner
Lember And Williams

your team. the LAW team.

Hi Michelle,

I've quickly skimmed through the Dividing Fences Act and I did not remember reading anything that says that if the fence was built without giving the neighbour notice that the Act would not apply.

I'm currently in a situation whereby my neighbour's an investor who's house price included the cost of the fence. The builder is now demanding that I pay 50% of the cost of the fence - and its already up without me agreeing to it!

Based on your comments, would I be right to think that I would NOT have to pay the builder anything and that the builder would not be able to take any legal actions against me in the future? Thanks.

maccacch

I have extracted relevant sections of the Dividing Fences Act below.

My additional comments are indicated with **:

Section 7 Liability of owners of adjoining lands to fence

Subject to this Act the owners of adjoining lands not divided by a sufficient fence shall be liable to join in or contribute to the construction of a dividing fence between such lands in equal proportions, whether the adjoining lands are to be wholly or only partly separated thereby.

** This section creates the liability of adjoining owners to contribute to a boundary fence. **

8 Service of notice to fence

(1) An owner who wants to compel an owner of adjoining land to join in or contribute to the construction of a dividing fence (including the demolition of an existing dividing fence and the
erection of a new fence) must serve the owner of the adjoining land with a written notice to fence.

** This means that, to trigger the liability in section 7, a notice to fence must first be served. Otherwise, the liability is not triggered. **

(2) A notice to fence must—

(a) specify—
(i) the common boundary line to be fenced; or
(ii) if only part of the common boundary line is to be fenced—the part to be fenced; or
(iii) if it is not proposed to construct the fence on the common boundary line for a reason stated in
subsection (3)—the line on which it is proposed to construct the fence; and
(b) specify the kind of fence proposed to be constructed; and
(c) contain a proposal for the construction of the fence.

** So not only does a notice to fence have to be served, but it also has to contain the prescribed information. **

9 Proceedings consequent on notice to fence

(1) If within 1 month after the service of any notice to fence the person serving the notice to fence and the person served with such notice do not agree as to the construction of the proposed fence, the line of the proposed fence, or the kind of that fence, a Magistrates Court or Small Claims Tribunal having jurisdiction as in this Act provided may, upon application of either of such persons, make an order (order to fence) determining—
(a) the kind of fence to be constructed; and
(b) what portion thereof shall be constructed by each person, or, as determined on the merits, that the whole of the fence shall be constructed by the person specified or that 1 person shall pay a greater proportion of the cost of such construction than the other and the amount of that
proportion; and
(c) the time within which it shall be constructed; and
(d) if necessary, all or any of the following matters, namely—
(i) the line upon which such fence is to be constructed; and
(ii) the compensation in the shape of an annual payment to be paid to either of the owners of the
adjoining lands in consideration of loss of occupation of any land; and
(iii) such further or other relief as that court or tribunal considers just;
....

** Only after serving a notice to fence, and 1 month has passed without the parties reaching agreement, can application be made to the Small Claims Tribunal or a Magistrates Court for an order. **

18 Jurisdiction of and proceedings in Magistrates Courts or Small Claims Tribunals

(1) An application under section 9(1) .....may be made to a Magistrates Court ....or may be made to a Small Claims Tribunal in accordance with the Small Claims Tribunals Act 1973 and that Court or Small
Claims Tribunal shall have jurisdiction to hear and determine that application.

** The Magistrates Court and the Small Claims Tribunal therefore have no jurisdication to hear any claim unless it relates to a notice to fence served under the Act. **

** Note Section 10 applies where a notice to fence is served, and an agreement is reached, and one of the parties subsequently breaches that agreement. In those cases, one party can proceed with the fence and seek reimbursement for the relevant proportion of the cost from the other party **

** There are also provisions for what happens if the adjoining owner cannot be located, which I won't go into. **

** In short, if a boundary fence is built without the prescribed procedure being followed, the Act will not apply and there will no liability to contribute to the cost. Many people choose to make a voluntary contribution to the cost, but cannot be compelled to do so. **

** If you are threatened with a claim and you believe the procedure was not followed, you may wish to seek legal advice. **

Regards
Michelle Lember
Partner
Lember And Williams

your team. the LAW team.

Hi Michelle,

No one seems to be able to help me so am hoping you can after coming across this forum.

Back in the November storms we lost about 5mtrs of fence into the neighbours yard on the Left hand side of our Property. Also our Retaining wall on our property on the right side of the house suffered significant damage. It was already deteriorating due to weather and it being 15 years old. Two months after the storm our Retaining Wall and Fence on left hand side was completely rebuilt by us.

Three weeks after the storm our neighbour made a site cut into the back corner of his yard (which is on the boundary of our property and the other neighbour - he is on a corner block) and also took away the existing retaining wall - approximate length is 20mtrs in total.

Since then we have quite a bit of rain and has resulted in the remaining fence to fall into his yard as the fence posts have nothing to hold onto as the land has not been retained.

We believe he is liable to fix the retaining wall as he did not advise us of his intentions - is this correct? After he removed the retaining wall he advised that he was going to rebuilt it at his own cost.

Now as a result of him taking 5mths to rebuilt the retaining wall the rest of the fence has fallen - is he liable for this aswell.

We have no privacy as there has been a section of fence down since November and then the remainder down since the start of April.

He has stopped communicating with us as we are trying to sell our house (which we have a contract on the house) and have asked repeatedly for this to be fixed and have also issued him with a letter from our Solicitors stating that if it is not fixed by settlement date we will take the matter further. Something we don't really want to do but since then he has stopped communicating with us.

If we were staying here, and as much as it would annoy us without privacy we would let him complete the fence in his own time. But as we have a contract on the house we would like at least the fence errected before then.

The main question I want to ask is - is he liable for the retaining wall? and now the fence as he took so long to erect the wall that the fence has fallen over aswell?

He has advised our real estate agent that he is doing it himself at his own cost. But how long can he drag it out for.

He has built the wall over a period of 2-3weeks to avoid the huge cost of getting a professional in. I can again only assume he will do the same for the fence.

In the beginning we were happy to go halves with the fence but as a result of not building the wall immediately, we believe he should be liable for building the fence at his own cost.

If you have any advice that would be much appreciated.

Thanks
Kyla

Kyla,

As a first port of call you should seek the advice of the solicitors who are handling your conveyance. The matter may require urgent attention due to the imminent settlement and as a result of any warranties you have given or obligations you may have assumed under the contract.

Your situation is complicated and requires specific legal advice.

A general summary of the law relating to repairs is:

1. Adjoining owners are equally liable to contribute to the cost of repairs.
2. A notice to repair, equivalent to a notice to fence must be served if you want to trigger that neighbour's liability to contribute to the cost.
3. In the case of storm damage, you can immediately repair the damage and recover half the cost from the adjoining neighbour without first serving a notice to repair.
4. In the case of damage caused when a neighbour removes supports, causing damage, that neighbour must repair it, and in default of doing so, the neighbour not at fault can repair and recover the cost from the defaulting neighbour.
5. The definition of "fence" in the Act includes a retaining wall.

The applicable extracts from the legislation are as follows:

s. 15 Liability of adjoining owners to repair

Subject to section 16 whenever any existing dividing fence is out of repair the owners of land on either side thereof shall be liable to join in or contribute to the repair of such fence in
equal proportions.

s. 16 Procedure to compel contribution

(1) An owner, of land separated from adjoining land by an existing dividing fence, who wants to compel an owner of the adjoining land to assist in repairing the fence must serve the adjoining owner with a written notice to assist in repairing the fence (a notice to repair).

(2) Where the person served with the notice to repair does not within 1 month after such service assist the person serving the notice in repairing the dividing fence the subject of the notice, it shall be lawful for the person serving the notice to repair the fence and demand and recover from the person on whom the notice has been served one-half of the cost of repairing the same.

(2A) However—

(a) if any dividing fence has been constructed partly by 1 owner and partly by another owner—each shall bear the cost of repairing the part so constructed by him or her but without prejudice to the right of the other owner to repair that part under subsection (1) and to recover the cost thereof;

(b) if any dividing fence or any portion thereof is damaged or destroyed by flood, fire, lightning, storm, tempest, or accident—the owner of the land on either side may immediately repair the same without any notice to repair to the other owner and shall be entitled to recover half of the cost of so doing from the owner of the adjoining land;

(c) if any dividing fence has been damaged or destroyed by the withdrawal of any support reasonably necessary for its support and maintenance had by the fence, or by any act of an owner of any of the adjoining lands separated by that fence, or by fire or by the falling of any tree or
trees—the owner of the land whereon that support is withdrawn, or by whose act the fence has been damaged or destroyed, or through whose neglect the fire originated or caused injury to the fence or the tree or trees fell, as the case may be, shall be bound to repair the fence so damaged or destroyed as aforesaid and in default the adjoining owner may repair the same and demand and recover from the owner so liable and in default the whole of the cost of such repair;

(d) if within 14 days after service of the notice to repair the person served with the notice serves on the person serving that notice a notice to fence under section 8 with respect to that dividing fence, then the repair of such fence shall abide the decision of a Magistrates Court or Small Claims Tribunal having jurisdiction as in this Act provided upon application of either of such persons made at any time after the service of the notice to fence, and the provisions of section 9(1) and all other relevant
provisions hereof, with all necessary adaptations thereof, shall apply with respect to that application and any order made thereupon (it being hereby declared that the Magistrates Court or Small Claims Tribunal hearing and determining that application may make an order to repair or, as it thinks fit, an order to fence thereon).

(3) If an owner who is served with a notice to repair pursuant to subsection (1), within 14 days of the receipt of that notice, advises in writing the owner who served the notice that—
(a) he or she disputes the need for repairing the fence and is not prepared to bear any portion of the cost of repairing the fence; or
(b) he or she is prepared to join in the repairing of the fence but is not prepared to bear half the cost of the repairs;
the owner who served the notice to repair may apply to the Magistrates Court or Small Claims Tribunal having jurisdiction as in this Act provided for the determination of the matter in dispute, and that court or Small Claims Tribunal upon the application may by order determine whether the fence is in need of repair, and if so, by whom the repairs are to be effected and the proportion of the cost of those repairs to be borne by each owner.

(4) Upon the giving of the advice in writing by the owner on whom the notice to repair is served, the repair of the fence shall abide the order of the court or Small Claims Tribunal upon the matter in dispute.

I hope that helps.

Regards,

Michelle Lember
Partner
Lember And Williams

your team. the LAW team.

Hi Michelle,
After carefully reviewing what we want to do with our new property, Pyrotix and I considered putting in a pool at a later date and also hedges down the side of our entertainment area for some extra privacy. Our dilemma is this: the wooden fence down that side (where we would later place the pool) has been cut shorter by the neighbors. The fence is definitely too short to adhere to the pool fencing requirements not to mention once we put in the topsoil we could easily stand next to it and look straight into their backyard. We will need to take the current pailings off and replace them with new ones of the correct height. The fence was there before we bought the property and is right on the boundary (I believe) so should we ask the owner of the property to go halves?

Any help would be greatly appreciated, AJ

Hi Michelle,
With our fencing issue I'm pretty sure we will be needing specific legal advice, however here's hoping you may have relevent imput or perhaps be able to steer us in the right direction.

We're on a residential rural property (4 acrea lot) with our neighbours relevently close considering. The fence in question has been constructed inside the boundary and we have the following concerns.

1. It has been built 15-30 cm inside on the neighbours property (on his own land). It varies in height from 2mts to 2.4mts as its built on a slope.
2. They never gave us any warning that they were going to build it (verbally or written) and we realise they don't have to by law when they arn't asking for any form of contribution towards it.Consquently there was never an "intention to fence" issued either. We were never given any input into the fence with regard to its appearance , position or costs prior to work starting.

3. The tricky bit is... they have left the old boundary fence still standing so basically they've build a fence inside of a fence. Now we don't know where we stand legally as to who is responsible for the removal of the old fence and are we correct to assume they still legally own half of the old one? The old fence (still standing) was in need of attention and we acknowledge this. However we would have been happy to go halves in a properly constructed fence that met both our needs and one that was more suitable to our rural outlook.

4. Who now is responsible for the upkeep of the strip between the boundaries and can we paint and maintain the new fence (as we've been given the rough unpainted side).

I have checked with our local council who informed me that any fence over 2mts would require a building certification which we found out they had not obtained. Also apparently it should be a standard type fence for our area which of course it isn't. We're waiting for an officer to come out to access the problem.

We realise there has been no liability triggered as no notice to fence was given. It was very interesting to read your notes about the law on "adverse possession". Can you tell us the relevent length of time before they lose possession of the land?
Mediation is out of the question as they are unapproachable.

We personally believe he has taken this option with the sole intention of having complete control of the height and look of the fence with no regard to our amenity.

Hope you can help

Mary Kay

Hi Mary

The Dividing Fences Act applies to boundary fences, which is the dividing fence that runs along a boundary.

A fence wholly inside your neighbours land is not subject to the Act but will still be subject to Council building regulations etc.

Adverse possession usually requires uninterrupted occupation of land for a period of at least 12 years. Be aware that if you allow buildings or structures (eg carport) to encroach onto the strip of land between the boundary and the fence inside your neighbours land, your neighbour will have rights in relation to that encroachment (eg to have it removed, compensation paid etc).

There is nothing stopping you issuing a notice to repair the boundary fence to your neighbour. They will have the oppoturnity to dispute the notice and may do so on the basis that the fence they built is sufficient, although as it is not a boundary fence it can be removed by them at any time. You might also wish to wait on the outcome of the Council inspection as it might be the case that some of the new fence needs to be removed in any event.

Cheers
Michelle Lember

your team. the LAW team.

Hi Angelfire

To repeat what I said above, if the dividing fence is also a pool fence:

(a) The neighbour who is not the pool owner can still be forced to pay towards the cost of the dividing fence, but only to the value of half the cost of a standard fence;

(b) if both you and your neighbour want a dividing fence to act as a pool fence because you both have pools, then the cost would be shared equally; and

(c) if you need to alter the existing fence because of local council laws, then you as the pool owner will have to pay that cost, unless the fence was in need of replacement or repair.

It seems to me that if the fence is no longer "standard" because the neighbour unilaterally cut the fence down, then 162(A) might require your neighbour to repair the fence at their cost since it was their acts that damaged the fence in the first place. This is if it is in need of repair and the shortening of the fence can be regarded as "damage".

If it isn't in need of repair, but it is not a "standard" fence then it might be argued that your neighbour must contribute to half of the cost of a new, standard fence.

Failing that, the usual case is that if the fence is not in need of replacement or repair, and you need it to be pool fence compliant for local laws, you will be repsonsible for the cost.

Regards
Michelle Lember

your team. the LAW team.

Hi Michelle

Our neighbour reported us to the council as they said our pontoon overlapped their "water" when looking along the fence line and the council inspected it and said actually it is because the neigbour had extended a new fence at an angle to the boundary wall and had in fact erected the extension of the fence on our land.

It looks like they have taken at least 600 mm of our land for a distance of about 6 meters.

This ia about 3 square metres of our block or 0.55% and at current land prices is worth about $4-5000.

What are our rights and remedies in this situation, especially as their house is now up for sale.

Hi Michelle,
I have just stumbled across this site, and have a query, that I hope you can help me with please.
I am in the process of building at the moment, as is my neighbour. His property is approx 600-700mm lower than mine, and he will have to lower the land between us to be level with the rest of his section, My question is- whilst we are required to share the cost of the fence, I believe that as he is lowering his land, and will more than likely need to put in a retaining wall between our sections, with the fence on top,that we are not required to share the cost of this retaining wall, and it should be his cost, as he is lowering the land level. Is this correct ??

Thank-you

Hi Goodfella

The new fence is an encroachment and you will need to seek legal advice ASAP in relation to it.

Essentially, under the Property Law Act 1974:

- Either an adjacent owner (you) or an encroaching owner (your neighbour) may apply to the court for relief in respect of any encroachment.

- The court may make such order for relief as it considers appropriate with respect to—
(a) the payment of compensation to the adjacent owner; and
(b) the conveyance, transfer, or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest in the land or of any easement, right, or privilege in relation to the land; and
(c) the removal of the encroachment.

- The court may grant or refuse the relief or any part of the relief as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider, amongst other
matters—
(a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be;
and
(b) the situation and value of the subject land, and the nature and extent of the encroachment; and
(d) the loss and damage which has been or will be incurred by the adjacent owner; and
(e) the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment; and
(f) the circumstances in which the encroachment was made.

- The minimum compensation to be paid to the adjacent owner in respect of any conveyance, transfer, lease, or grant under section 185 to the encroaching owner shall, if the encroaching
owner satisfies the court that the encroachment was not intentional and did not arise from negligence, be the unimproved capital value of the subject land.

A conveyance/transfer or easement will likely involve the lodgment of a new survey plan and the payment of stamp duty on the transfer. The less expensive option might therefore be to ensure that the encroaching owner moves the fence at their expense.

Regards,
Michelle Lember

Hi Concorde

Under the Dividing Fences Act, "fence" is defined as "a structure of posts and boards, palings, rails, galvanised iron, metal, or wire, or a wall, ditch, or embankment, or a combination of any of these, enclosing or bounding land, and includes any foundation, foundation wall, or support reasonably necessary for the support and maintenance of the fence, but does not include a wall which is
part of a house or other building".

This means that any reference to a "fence" in the Act includes a reference to a retaining wall (unless the wall is part of a house or other building).

Accordingly, either party can serve the other with a notice to fence. If you are charged with the cost of one half of the retaining wall and you dispute this component (eg on the basis that the actions of the adjoining owner in lowering the land created the need for the retaining wall) then the matter would first be mediated before being heard by the Small Claims Tribunal.

Cheers
Michelle Lember

I suggest

My property is located at the bottom of a hill at the lowest point in the street. The block is in an overland flow area. Seven years ago, before I purchased the property, my block was subdivided into two equal 405 sq meter blocks and a new property was constructed on cut and fill on the new block. This cut and fill raised the new property above the overland flow. A retaining wall was constructed on my block to retain this cut and fill.

I have recently had a development application approved for the extension of my property. As part of the development application a boundary and corner survey was carried out on my property. This showed that the boundary between my neighbour and myself was 300 mm out in my neighbours favour. The DA specified that a new retaining wall would need to be constructed to replace the existing 25 metre long timber retaining wall.

I discussed this with my neighbour and advised him that the existing fence and retaining wall would need to be reinstated into the correct position. I was expecting to carry out this work to no expense to my neighbour and as such money was not discussed. The palings on the original fence were on my neighbours side. The new retaining wall was constructed on my side of the correct boundary.

When my builder removed the old fence and retaining wall it was discovered that the existing 25 meter retaining wall was not retaining all my neighbours land. Instead, my neighbours land had been cut and filled along 35 meters of his 40 meter long block and as such the fence from 25 meters (the end of the old retaining wall) to 35 meters was actually acting as a retaining fence. The bottom of this fence was rotten and had to be disposed of.

As opposed to asking my neighbour to excavate between 800 mm and 1500 mm of land along the 10 meter length and width of his garden which would bring his land back to the correct RL within the overland flow path, I decided to to construct an additional 10 meters of retaining wall to retain his land at a cost of several thousand dollars. During the construction of the new retaining wall I set 50 mm square steel posts into the wall on my side of the boundary at 2.4 meter intervals onto which I planned to build a 1.8 metre tall dividing fence.

My builder has confirmed that access will be required around the boundary of my property during the construction process for the erection of scaffold etc. As such, I was not planning on constructing a permanent fence until the end of the project which is about 3 months away. During the construction period, a high visibility construction fence is in place along the length of the boundary.

Due to the additional expense of having to replace the rotten boundary fence, I contacted my neighbour and asked him to contribute 50% towards the $1600 total cost of new timber for a fence which I would construct myself on my posts with the palings on my side. As he wants the palings on his side he obtained a quote of $6000 to construct a new fence on my posts with the palings on his side. He has not offered to pay me any money towards the purchase and installation of my posts.

As such, I have a few questions that require clarification:

1. Can my neighbour force me to contribute $3000 ($6000 in total) towards a fence to be constructed on my posts with the palings on his side when I can construct a fence on the same posts for $1600 ($800 each)?

2. What are the regulations for the installation of palings (e.g. on which side should they be installed)?

3. My neighbour would also like to construct the fence now whilst construction is still underway. Can he force me to do this or must he wait until the build is complete?

4. Can I stop my neighbour from using my posts which are on my side of the boundary line?

Hi Michelle,

You stated "This means that any reference to a "fence" in the Act includes a reference to a retaining wall (unless the wall is part of a house or other building)".

My neighbour's retaining wall is part of his driveway and and his garage. Is this considering as part of other building? My driveway is beside the retaining wall going down to my garage at the lower level.

So in brief, his garage and driveway, the retaining wall which is presume on the fence line and my driveway on a slope.

Cheers Ben

Hi Michelle,

I have a question also regarding dividing fences and where i stand in terms of paying 50% of the cost.

I purchased a block of land in Nov 2008 and moved in to our new home in Nov 2009. Soon after moving in we were given an invoice for 50% of the cost of a boundary fence.

The fence was built in July 2008 - prior to us even owning the land, so there was no notice to fence served to us nor did we have a say in what kind of fence was to be built.

Where do we stand?

Thanks

Simba

Unless there is something in your purchase contract stating otherwise, you have no obligation to contribute to the cost of the fence.

As stated above, you must have first received a notice to fence in accordance with the Act, before the fence is erected, to have that obligation.

Cheers
Michelle

Hi Ben

From what you say the retaining wall that forms part of your neighbours garage etc will not be a fence within the meaning of the Act. This will be the case often with houses that have zero setback ie smaller lots.

Cheers
Michelle

Tobydogger

Your situation is complicated and likely more approprate for specific advice. I suggest you contact your solicitor.

In my view, the short answers (adopting your numbering) are likely to be:

1. You cannot be forced to contribute until the process under the Act is followed. If you are served with a notice to fence, then you can dispute it and have the Court decide. Under the circumstances, the Court might deem it reasonable that the lower cost option be pursued having regard to all the circumstances and, particularly, the encroachment. Remember the act only applies to boundary fences, not to fences entirely within your boundary.

2. I am not aware of any regulations regarding which side the palings face, although it can be problematic for pool owners where the fence is also going to be a pool fence.

3. The timing is dictated by the Act. You have a month to respond to a notice to fence. If you object, the procedure under the Act will take much longer than that. So practically, you could not be compelled to fence within the construction period I would expect.

4. Possibly. If the posts are entirely within your boundary and the fence to be constructed on them would also be entirely within your boundary, then the act will not apply any fence you construct would be a fence on your land, not a boundary fence.

Cheers
Michelle

Hi All

I am closing this forum on the basis that the topic has been comprehensively covered by the information above.

Merry Christmas to all!

Cheers
Michelle Lember

Hi Michaelle,

i am just trying to find some advice on the retaining wall laws. I am about to settle on my land and am concerned with who is actually responsible for which retaining wall.

My block has 2 retaining walls, the left side is the lower and the right is higher. On the left side the retaining wall happens to be on my neighbours block of land, situated approx 0.6m lower then my block. The right hand side retaining wall is on my land situated 0.6m lower then my adjacent neighbour above me.

From what i have been told i am responsible for the lower wall even though it is on my neighbour's land, does this then mean i am not responsible for the right retaining wall because it is retaining my neighbour's soil from falling onto my land.

OR

is the law, that whatever retaining wall is on my property I am responsible for. Not that I am responsible for the wall retaining my land?

could you please clear this issue up for me asap. thanks a lot Michelle.

also, should the retaining wall retining my land then be on my land if i am responisble for it, and the other retaining walls on my land be on my neighbour's. Seeing as they are retaining their land.

can anybody recommend a silicitor for a dividing fence dispute ?