What if my neighbour disagrees with the fence?

If your neighbour does not agree to the fence, you need to obtain a quotation and send them a Dividing Fences notice. They have the option to respond, but if they don’t, you may go ahead and organise for the fence construction and your neighbor will have to meet their share of the cost. If there is a genuine dispute, you may try to settle it through a Community Justice Centre or, failing that, take the matter to the Local Court.

Orders as to fencing work
(1) A Local Court or local land board may, in respect of an application under this Act, make an order determining any one or more of the following:
(a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands,
(b) the fencing work to be carried out (including the kind of dividing fence involved),
(c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned,
(d) which portion of the dividing fence is to be constructed or repaired by either owner,
(e) the time within which the fencing work is to be carried out,
(f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land,
(g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands.
(1A) Despite subsection
(1), no order may be made for the carrying out of fencing work on critical habitat within the meaning of the Threatened Species Conservation Act 1995 without the consent of the Director-General of National Parks and Wildlife.
(2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.

Most disputes over fences are about the style of fence. One homeowner may want a steel fence while the other may prefer a less expensive paling fence. If such a dispute goes to Court, the Court will look at the standard style of fencing for the area.

The most common mistake made over fences is where one homeowner goes ahead and gets work done without consulting their neighbor, and then serves them the notice to pay, believing that their neighbor has an overwhelming obligation to pay. The answer is: Always talk to your neighbours first and try to get agreement. And remember, if neither of you wants a dividing fence between your properties, then you don’t have to have one!

The best way of avoiding unneccessary problems with your neighbour is through good communication. It is suggested that a well drafted letter to your neighbour stating your intentions is the best way to avoid neighbour disputes, even if you are not asking for payment towards the work! This should be backed up by another letter including quotes obtained by fencing contractors. Thirdly, a completion letter requesting payment for their portion of the work is required upon completion. Legal letters drafted especially for you to send to your neighbours, …draft letters

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Avoid bad relations with your neighbors…

Trees and their location can often cause much disagreement between neighbours. Problems such as overshadowing, privacy, damage from roots or falling branches can cause issues between neighbors. Where both neighbours agree to retification of the problem and an agreement on costs can be reached there is no problem.

Sometimes where a tree is located on the boundary, both owners are equally responsible for the tree and any damage it may cause.

If a tree planted by your neighbour has grown and now threatens to damage property or fencing, you must write to your neighbour informing them of the situation, and request the tree be removed and replaced with a smaller more suitable tree. If your neighbours trees have grown and are now blocking or threatening your views you should first speak with your neighbours and see if you can reach an agreement on height. The plant would then be trimmed and maintained to this height by the owners of the trees. If no agreement can be reached your best action will be through your local municipal council.

In the event your property is shared with an owners coorporation, managing agents, apartments, villas, townhouses or commercial structures, it is best to advise the registered owners in writing, of the works or rectification work required and any costs involved. If you are not on speaking terms with your neighbour, or the home is tenanted, a well drafted letter informing them of your intentions should be sent to the owners registered address prior to any works.

If your neighbours tree branches overhang your yard you have the rights to trim the branches (at the boundary fence line). The branches belong to the owner of the tree. Place the branches in the owners yard for them to dispose of. It is advisable to speak to your neighbour first stating your intentions. Failing this you can send them a well drafted letter stating your intentions and their responsibilities.

If you have suffered property or fence damage caused from a tree, or a falling tree, a property insurance claim should be lodged by the owner of the tree. Before removing any trees always check with your local government for approval prior to any work.

To help with your negotiations we have drafted a collection of ‘Letters To Serve Your Neighbours RE: TREES’. Print the letters you require for notification, costs and works completed to avoid expensive and stressful neighbour disputes.


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