Disputes between neighbours about dividing fences are common across New South Wales, particularly where there is disagreement about responsibility or cost of fencing work, or alleged damage, and in cases where years have gone by and the fence has become dilapidated. While emotions often run high in these situations, the legal position is more measured and structured than many expect.
What is often a simple matter, can become very complex because of the way neighbours react and deal with the dispute.
Understanding the Dividing Fences Act 1991 (NSW)
The starting point is the Dividing Fences Act 1991 (NSW) (Act), which sets out the framework for determining when a sufficient dividing fence is required. What constitutes a “sufficient dividing fence”, and how costs are to be shared, is not always straightforward.
Common Points of Contention and Alleged Damage
A frequent point of contention arises where one neighbour alleges that the other has damaged an existing fence (for example, there is a tree on the neighbour’s property that has damaged the fence) and then that neighbour proceeds to issue a fencing notice seeking contribution for replacement or repair.
Sometimes, a fencing notice is not even served on the other neighbour. It is often assumed that proving fault will entitle the aggrieved neighbour to recover more than the usual 50% contribution to fencing works. However, that is not necessarily the case.
What is a ‘Sufficient Dividing Fence’?
Whether a fence is a “sufficient dividing fence” under the Act depends on a range of factors including the nature of the land, its use, and the character of the locality. The condition of the existing fence is only one part of that assessment.
Where damage is alleged, does that automatically translate into a greater financial obligation on the other neighbour? The question remains whether the fence, in its current state, meets the statutory standard of a sufficient dividing fence and if not, what contribution is reasonable in the circumstances if costs are to be incurred for fencing works.
The Importance of Statutory Procedure
Equally important is the process. The Act requires that neighbours follow certain procedures before carrying out fencing work, including the service of a valid fencing notice and allowing time for agreement to be reached.
Except in genuinely urgent situations, a neighbour who proceeds to carry out fencing work without first complying with these requirements may find it difficult to recover any contribution at all from the other neighbour for the cost of the work, regardless of the merits of their position.
Practical Implications for Neighbours
In practical terms, this means that acting too quickly can undermine an otherwise reasonable claim. Conversely, responding carefully and in accordance with the Act can place a party in a stronger position, whether they are seeking contribution or resisting it.
Fencing disputes often involve a mix of legal, practical, and interpersonal considerations. Whether you are taking an active role in seeking to replace or repair a fence, or responding to a notice from your neighbour, it is important to understand both your rights and your obligations under the legislation.
This post appears in Strata News #792.
Fausto Di Palma JS Mueller & Co Lawyers E: enquiries@muellers.com.au P: 02 9562 1266
This article has been republished with permission from the author and first appeared on the JS Mueller & Co Lawyers website.