At one time or another most people will be faced with the prospect of having to repair, rebuild or replace a fence. The Fences Act provides that adjoining property owners are jointly responsible for the cost of building, maintaining or repairing boundary fences.
As a matter of practicality this usually means that each party will split the cost equally.
Sounds simple and straightforward however disputes can and often do arise when one neighbor wants a new fence, the other one doesn’t, one neighbor wants to repair what they consider to be a derelict fence, the other one doesn’t or one neighbor wants a replacement fence that is more expensive than usual and so on and so.
If you find yourself in this situation, the very first thing you should do is talk to your neighbor.
In most instances, if you discuss your concerns and articulate why the repair or replacement is necessary and try to reach agreement about the cost, perhaps negotiating a different proportion, the matter may be amicably resolved.
However in certain circumstances it may not be possible to resolve the matter. In this case it will be necessary to resort to the formal process contained in the act.
- The first step is to serve on your neighbor a Notice to Fence.
- This is a formal written notice requiring your neighbor to contribute to the cost of the fence. It must specify the boundary to be fenced and contain specifics as to the type of proposed fence. That is details as to the length, height, materials and colors.
- Details should also include the breakup of costs that each party must contribute. Although not strictly required, best practice dictates that you include two quotes and clearly indicate the quote you propose to accept.
Should agreement be reached, the parties must then proceed in accordance with that agreement.
Should either party fail within three months to act in accordance with that agreement, the other person may construct the agreed fence. You can then proceed to recover the other party’s contribution through the Magistrates Court.
In this event you have the statutory right to enter onto your neighbors property to repair or construct the fence in accordance with your agreement. This statutory right of entry will also permit entry if there is the need for an immediate repair (as a result of an accident), you have notified your neighbor of the need for repair and after one week there is no response or you have obtained a Magistrates Court order.
If after a period of one month from the service of the Notice you are unable to reach agreement, either party may take further action in the Magistrates Court.
Prior to taking any Court action, which can be expensive, and time consuming you should strongly consider mediation as a means to resolving your differences.
The Dispute Settlement Centre of Victoria provides a free mediation service. They do not take sides, but they do seek to facilitate a negotiation and ultimately an agreement between the parties that amongst other things seeks preserves the relationship between the parties.
Should the other party fail to attend mediation, should the mediation fail or the agreement breached, your only alternative is to refer the matter to the Magistrates Court.
As always this article contains general information only and should not be relied on for detailed advice related to your particular circumstances. Should you require such advice, please contact your lawyer.
Rhiannon Leonard is a property lawyer at Sutton Laurence King Lawyers. Rhiannon can be contacted on 03 9070 9810 or .