Is your backyard fence falling apart or looking a little shabby?
You might be wondering who is responsible when it comes to building, repairing, or replacing shared fences with your neighbour — and how to approach the conversation.
"Disputes definitely come up around the cost of the fence, how much and how that will be shared," says property lawyer Amanda Farmer, who is based in Sydney/Gadigal country.
"The location of the fence can be an issue … the condition of the fence — does it in fact need repair or full replacement? And what should it look like … and the height of the fence as well."
We talked to Ms Farmer about what you need to consider and steps to take.
It's not always as simple as splitting costs
While generally it is up to neighbours to split the cost of the build, repair, or replacement of a shared fence, it doesn't have to be split equally, Ms Farmer says.
For example, if one party wishes for the fence to be made from more expensive materials, or be longer or taller, Ms Farmer says an agreement can be made where there will be unequal split.
There will also be occasions when the cost is the responsibility of one party only, Ms Farmer says.
"If someone has been careless or reckless and damaged the fence, then the person who is responsible for the damage would usually incur the cost."
But disputes can occur when proving how the damage was caused becomes difficult, she says.
Start with what the law requires
A good place to start from when thinking about the fence is what the law says, suggests Ms Farmer.
"The law just requires that a dividing fence be sufficient — that is the word used in legislation.
"It doesn't have to be the best fence money can buy."
She says if a court was considering what was sufficient, it would look at:
- What is already there, for example, is it timber or Colorbond
- What the properties are used for, are they commercial or residential
- The local area, what fences other people have
- Is it a heritage site, and does the council have special requirements for fencing.
"When thinking about getting quotes for a different fence, it's a good idea to turn your mind to those kinds of things," Ms Farmer says.
It's worth gauging what type of fencing your neighbour is keen to have.
If you have a good relationship with your neighbour, you could try knocking on their door or talk to them about your fencing issue.
Talking on the phone, or putting a letter in the mailbox may be easier, depending on the relationship, suggests Legal Aid NSW.
If they are happy with what is sufficient, but you are wanting more than that, offering to pay a larger share "might be a smoother way to approach the conversation," Ms Farmer says.
When you can't come to an agreement
If you and your neighbour reach an agreement about your fencing issue, you can put the details into a written agreement, according to Legal Aid NSW.
"If one neighbour does not do what they agreed to, it may be possible to enforce the agreement," it says.
If you can't come to an agreement, Ms Farmer recommends following the steps set out in the dividing fences legislation applicable to your state or territory — which are "fairly similar" across the country.
"Usually, the first step in that process is sending a formal notice to your neighbour … confirming the location of the work, the type of work, estimated cost, and you should make sure you have attached a quote, and been clear you want your neighbour to contribute."
Wait for a response, but if they don't come back to you, or you can't reach an agreement, you can go on with legal proceedings in a court or tribunal, Ms Farmer says.
You could also try mediation, either before a fencing notice is served, or after, Legal Aid NSW says.
She warns against going ahead with the work and expecting your neighbour will be forced to pay up later.
"Some people do that and think, 'Well it's dividing a fence, I will just do it and send the bill'. That is not how the law works."
For more detailed information you can visit your state or territory based Legal Aid websites, such as Legal Aid NSW, Legal Aid TAS, and Legal Aid WA.
This article contains general information only. You should consider obtaining independent legal advice in relation to your particular circumstances.
