A dividing fence is a fence borders neighbouring properties along the common boundary, though it can sometimes lie on one property more than the other. In the ordinary course, each property owner will jointly own the dividing fence and be responsible for any modifications, repairs or alterations. There are some exceptions to this rule however.
What is a dividing fence?
The Dividing Fences Act 1991 (NSW) sets out the law in relation to dividing fences. A dividing fence can be made from many different types of materials, including bricks, metal, wood, farm materials, vegetation, or hedge. In most local government areas, a standard residential fence should not exceed 1.8 metres.
It is interesting to note that neighbours do not need to construct a dividing fence if neither party wants one.
Who pays to construct a dividing fence?
The general principle under the Dividing Fences Act is that adjoining owners are equally liable for the costs of a dividing fence to a reasonable and sufficient standard. It is up to property owners to decide on a reasonable fence and the apportionment of costs. The Act regulates the responsibilities between neighbours with the aim to facilitate agreements, but there is nothing in the Act to prevent neighbours from reaching their own agreement in relation to costs. Furthermore, if one owner wishes to use more expensive material, they will usually assume responsibility for the difference. The Act states that an adjoining owner who wants a dividing fence of a standard greater than that reasonably constructed within the area is liable to pay the difference.
Property owners should consider the material, height, position, and colour of the fence when obtaining quotes. There may also be restrictions of the style of the fence in your local area. It is best to check with your local council before constructing a fence.
Who pays to repair a dividing fence?
Generally, repairs for fences should also be shared between property owners. However, if a dividing fence has been damaged at the fault of one party due to negligence or a deliberate act, then the party responsible for the damage usually incurs the cost of repairing it.
If one owner wishes to carry out addition works than the purpose of the fencing work (such as trimming trees, or removal of vegetation), they are liable for the extra work.
Issuing a Fencing Order
Sometimes parties will not agree on the type or cost of a new fence. A party would then be required to issue a Fencing Notice to the neighbour which contains details of the proposed work. A Fencing Notice will list what fencing work should be carried out and how the costs should be shared between the parties. If urgent work is required to rectify any severe damage, the work can be undertaken prior to issuing a Fencing Notice and then the party who undertook the work would seek to recover the cost from the neighbour.
The Fencing Notice will specify:
- the line of the proposed fence;
- the type of fencing work proposed;
- the estimated costs; and
- the costs share proposed.
A Fencing Notice may prompt parties to agree on the work proposed in the notice. If this is not successful, parties can attend mediation at a Community Justice Centre.
In the event mediation is not successful, and after a period of one month has lapsed, a party can apply to the Consumer and Commercial Division of NCAT or the Local Court for a final determination.
NCAT or the Local Court may determine:
- whether a dividing fence is required;
- the boundary the dividing fence will be built on;
- how the costs will be allocated;
- the type of fence; and
- the time frame for the work to be completed.
If you require any further information about your rights and obligations in relation to a dividing fence, please contact a member of the Cheney Suthers team.