A fence can be ‘any structure, ditch, embankment, hedge, foundation, or gate’ which divides two pieces of land. It doesn’t include retaining walls. All issues relating to fences are covered by the Dividing Fences Act 1991 (NSW), and the Local Court or local land board can resolve any disputes.
Notice and Agreement
A fence affects the people on both sides of it. Therefore, before you can build a new fence or fix an existing one, you need to give notice of the planned work to your neighbour.
Notice should be given in writing, and should include:
An accurate description of where the fence will run
- The type of fence to be built (how high, how long, what materials)
- Who will build it
- When building will start and end
- An estimate of cost
- If the costs won’t be split equally, proportions of how much will be paid by each party (eg 40/60, 20/80 etc)
Written notice can either be handed over in person, or mailed.
Once notice has been given the parties should agree on cost, materials, placement and a time for the work to be carried out. You should put all of these agreed details in writing, and both parties should sign.
A written agreement is the best way to make sure that both sides uphold their ends of the deal. Anything that has been agreed upon is enforceable (this is especially useful if one party later refuses to pay). Also, without an agreement you cannot enter into another person’s property to carry out the work.
Who Has to Pay?
If you both own your own houses
Generally, the cost is split equally between both owners.
If you are a tenant
If you are renting a house your landlord will pay. Contact your real estate to arrange this.
If you are renting a commercial property for business and your lease is for more than 5 years, then you will have to pay.
If there isn’t already a fence
The same rules apply whether you fix an existing fence, or build a whole new one- the costs are split equally. If there has never been a fence there you may need to pay a surveyor to determine where the fence will go (see below).
If one of you wants a better fence
Whichever party wants the more expensive fence pays the difference.
Amy and Fred are neighbours, and have agreed that a new fence needs to be built between their houses. Amy just wants to replace the existing wooden fence. She has received a quote for $500 to build a new fence just like the old one. Fred wants to turn it into a Colourbond fence instead. He has a quote for $800. They would each pay half of the cost for the wooden fence ($250), plus Fred would pay the remaining $300 to upgrade it to Colourbond. It total, Amy would pay $250 and Fred would pay $550.
If one of you agrees to pay in full
There is nothing stopping one person from offering to pay the full cost for the fence. If this happens, the person paying has full say in what type of fence is built. However, the person building the fence can’t enter onto the other person’s property without their permission.
If one of you has damaged the fence
If the fence needs repair or replacement because one of you has deliberately or negligently damaged it, the person responsible for the damage must pay all of the costs.
If the person responsible is a tenant, the landlord must pay. However, once the work is done the landlord can then pass the costs on to the tenant.
If you live next to a park or reserve
Parks, reserves and a number of other properties run by public authorities don’t have to contribute to fencing costs. If you share your fence-line with one of these types of properties you will need to pay the full cost of the fence. You may be able to apply to the body responsible for the adjoining land for reimbursement.
What if the Repairs are Urgent?
If the repairs are genuinely urgent (eg animals likely to escape) you can make them without giving your neighbour notice, and ask them for payment later. If they refuse to pay you can recover the costs in the Local Court.
However, you need to be careful- if your neighbour doesn’t agree that the work was needed they can apply to the Local Court or land board for a ruling that they don’t have to pay. Make sure you keep records to use as evidence to support you in case it’s needed. Pictures of the damage and quotes/receipts for the repairs are particularly useful.
What Sort of Fence?
You must make sure that the fence you choose complies with the requirements of your local council. Contact them with plans and get approval before you start to build.
Generally, so long as Council approves and both parties are in agreement, you can choose whatever design, height or material you would like. If the parties are having trouble agreeing, the Local Court can step in. They will base their decision on:
The sort of fence that was there before
The sorts of fences usually used by other people in your neighbourhood
What the land on either side will be used for
Requirements of the parties involved (privacy etc)
What if We Can't Agree on Where the Fence Will Go?
Usually, fences run along the boundary line between the properties. Problems can occur if there has never been a fence there before, or if there is a dispute about where the boundary line is. In these cases it is a good idea to call in a registered surveyor.
If both parties agree to call in the surveyor, the costs are shared equally.
If one party doesn’t agree to the survey being done they are still given a chance to mark out where they think the boundary is. If the surveyor finds that they are correct, they don’t have to pay (and the other party pays the full cost). However, if they are incorrect the costs are split equally.
If the dispute can’t be resolved a request can be made to Land & Property Information to have an independent survey conducted. This can be quite expensive, and there are fees associated with the application. Once the survey has been completed and a decision made, parties have 28 days to appeal.
If an agreement can’t be reached about what sort of fence to build and where, parties can apply to the courts for a fencing order. This can be very expensive and time-consuming, and is not something you should do lightly. Make sure that you have good legal advice, and be aware that you may have to pay the other party’s legal costs if you lose.
The first step is usually some sort of mediation. An independent mediator will sit down with everyone involved and try to help you reach an agreement.
If an agreement still hasn’t been reached after a month, either party can apply to the Local Court or Land Board under section 12 of the Dividing Fences Act 1991 (NSW). Notice is given to the other party, and if they object the matter goes to a hearing before the court. At the hearing, both sides present their arguments and evidence. The court can then make orders about:
Whether a fence should be built
Where the fence will go
- What sort of fence will be built
- How the costs will be shared
- When the fence will be built
- Which owner will build or repair which part of the fence
The decision of the court is final. The losing party will generally be ordered to pay the winner’s court costs (as well as their own share of the costs of the fence).
Disclaimer: This information is a general guide to the law. It should not be relied on as legal advice. If you have a specific legal problem you should consult a lawyer.
It applies to people who live in, or are affected by, the law as it applies in NSW, Australia. The information contained in this publication is current at 1 January 2014.