The Great Real Estate Divide… Changes to Shared Fences Law & Who Pays for What!

As Real estate agents from time to time we come across issues with dividing fences. The Neighbourhood Disputes Resolution Act 2011 commenced on 1 November 2011. The Act proposes a wider definition of the term fence (including hedges) and a clearer definition of the term ‘sufficient dividing fence’. Other general changes include a single ‘Notice for contribution to fencing work’ form, clarification that the ownership of the dividing fence on a common boundary is shared equally, distinction between a retaining wall and a fence, and clearer rules for pastoral and agricultural fences.

So What Exactly Makes a Dividing Fence?

A fence is a structure, ditch or embankment, or a hedge or similar vegetation barrier, enclosing any land, whether or not it extends along the whole boundary of the land separating neighbours. It includes any gate, cattle grid, or apparatus necessary for the operation of a fence.

A dividing fence is constructed on the common boundary line of adjoining land. Sometimes a dividing fence can be built off the common boundary line when it is impractical due to the physical features of the land.

Who Owns a Dividing Fence?

The Act does not affect the common law position. A dividing fence is owned equally by the adjoining neighbours if it’s built on the common boundary line. However, a fence or part of a fence built on one neighbour’s land is owned by that neighbour, even if the other neighbour contributed to the construction of the fence.

Basic Rules for Dividing Fences

There should be a sufficient dividing fence between two parcels of land if an adjoining owner requests one – even if one or both parcels of land are vacant. Generally neighbours must contribute equally to the cost of building and maintaining a sufficient dividing fence and should not attach something to a dividing fence that unreasonably and materially alters or damages it.

In most cases, issues about dividing fences need to be solved by the owner of the property. Except in very long-term leases, lessees of properties should not need to be involved in the issues about dividing fences. If a tenant is asked by their neighbour about a dividing fence issue, this should be referred to the property owner or the agent.

Are There Any Circumstances Where a Dividing Fence Isn’t Required?

Yes, there some circumstances where a dividing fence is not required:

  • if both neighbours of adjoining land do not want a dividing fence
  • where either parcel of land is outside the scope of the Act e.g. Southbank public land or a stock route
  • where both parcels of land are agricultural land
  • where there is no owner of the land eg. land under the Nature Conservation Act 1992 is not subject to a lease or stock grazing permit.

What Makes a Dividing Fence ‘Sufficient’?

A dividing fence is considered a ‘sufficient dividing fence’ in the following circumstances:

  • where two parcels of residential land are adjoined, the fence must be between 0.5 metres and 1.8 metres in height and constructed substantially of prescribed material.
  • where two parcels of pastoral land are adjoined, the fence must be able to restrain livestock of the type grazing on each of the parcels of land.
  • the owners agree a particular fence is a sufficient dividing fence
  • QCAT decides that a particular fence is sufficient. There are specific factors which QCAT must take into account (e.g. types of fences in the neighbourhood).

In working out what kind of fence is sufficient in the circumstances, the starting point is what will be sufficient to divide the properties. For example – a short chain wire fence. If either owner wants more, then they will have to pay the difference.

When one owner approaches their neighbour about a dividing fence, they should provide at least one quote. If the other neighbour thinks this is too high, they can obtain their own quote.

Who Helps Sort Out Disagreements Over Dividing Fences?

QCAT stands for the Queensland Civil and Administrative Tribunal. QCAT provides a single tribunal through which the community can access justice. QCAT provides the community with a more accessible, informal and responsive means of resolving neighbourhood disputes, including conflicts over dividing fences. For more information visit Queensland Civil and Administrative Tribunal (QCAT)

Who Pays for What?

Adjoining neighbours are each liable for half the cost of fencing work required to have a sufficient dividing fence. However, where one neighbour wants to have more work done than is necessary for a sufficient dividing fence then they will be liable to pay the extra expenses.

For example, if a neighbour wants a higher fence for privacy or security they should meet this extra cost. This does not mean that QCAT will order that the fence will be built according to their wishes. In those circumstances, QCAT would consider the wishes of each neighbour and the other factors which QCAT is required to take into account. A neighbour’s contribution might be made of materials or labour.

Please note: The information provided is a general guide to the key changes in the Act. The resolution of each neighbourhood situation depends on its own unique circumstances. This information provides a general guide only. Legal advice should be sought if in doubt about legal rights. Visit the Queensland Law Society to find a solicitor in your local community. The best policy is always to try and seek an amicable agreement with a neighbour so as to avoid any possibility of a legal dispute and ongoing ill-feeling.

Source: and for more information visit http://www.justice.qld.gov.au/justice-services/justice-initiatives/neighbourhood-disputes-resolution-act-2011

As specialists in real estate Paddington and surrounding areas we would recommend that any issues with dividing fences be cleared up prior to marketing your property.

 

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