Disputes over boundaries and fences are more common than you may think. In fact, they account for more formal disputes than any other. It is important to know these 5 tips for avoiding or managing fencing disputes.
1. Responsibilities of each party
Neighbours are required by law to contribute equally to construction costs for a “sufficient” dividing fence. A ‘sufficient’ dividing fence is determined from a range of factors such as the existing dividing fence (if any), the purposes of the fence, any reasonable privacy concerns and the general fences used in the local area. If either party wants a more expensive fence, they will have to pay the additional cost or agree to split the additional cost with the other neighbour. Neighbours can come to an agreement and then proceed to construct or repair fence. This agreement should cover at least the following matters;
Distribution of cost, appearance of fence (height, material, colour), timeframes for removal and construction, who is to build fence and which party gets which side of the fence.
If this is unsuccessful, alternatively, a neighbour can proceed under the Fences Act 1968 (Vic) which contains rules about parties’ responsibilities and resolving disputes.
2. Initiating an intention to build or repair fence
If you wish to build or repair the dividing fence you must have the consent of the registered owner of the neighbouring land. This is required even if you intend to cover the cost yourself. Under the Fencing Act, a fencing notice can be served to your neighbour. Sample notices can be found on a number of websites such as Fencing Online.
3. Issues with serving a notice
The fencing notice must be served to the registered proprietor of the neighbouring land. If the resident of the neighbouring land is not the registered proprietor you may need to make reasonable inquiries with any tenant, your lawyer or the local council. If the registered proprietor ignores the fencing notice for 30 days from the date the notice was served, then you may proceed with the fencing work without their agreement. Contribution would then be recovered later through an action in the Magistrate’s Court.
4. No consent – negotiation
The neighbour may reply in writing to the notice disagreeing with the proposal. This would prevent you from proceeding. You must then negotiate an agreement. If negotiation becomes difficult, the Dispute Settlement Centre Victoria provides free dispute resolution services and offers helpful information about resolving the dispute.
One particular difficult dispute concerns the location of the common boundary. In this case, either party may give a boundary survey notice that sets out an intention to have the common boundary defined by a licensed surveyor. Typically, both owners contribute to the cost of the survey.
5. Failure to pay their costs or come to an agreement
Neighbors who do not agree to pay their share can be served with a court order for their share of the costs. You can approach your local council who can by law, give out residents contact details to allow the serving of notices through a court. If neighbours cannot agree formally about a new or replacement fence, either party may give notice to the other settings out details of a proposed fence type, location and estimated cost. If no agreement can be reached amicably, either owner will be able seek a court order specifying what material the fence should be built from and how the costs should be shared.
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