Dividing fences

Contributed by Harriet Ketley and current to 1 September 2005

Obligations of neighbours relating to dividing fences are governed by the Dividing Fences Act 1961 (WA) (“the Act”). Retaining walls and any land used for public purposes are not covered by the Act. The Act does not apply to any land used for public purposes.

A dividing fence is a fence that separates the land of different owners whether the fence is on the common boundary of adjoining lands or on a line other than the common boundary. If the fence is not on the surveyed boundary or there is a disagreement about its position, seek advice from the Local Government or legal advice. A licensed surveyor (for a fee) will survey the disputed boundary line.

The general rule is that the owners (not the tenants) of adjoining land are each obliged to pay half the cost of erecting or repairing a sufficient fence to divide their properties. There may be local laws which regulate the type of fence that is required. The Local Government should be consulted if there is any concern about this. Owners may decide what type of fence they want as long as it does not violate the local laws. Only the owner who built the fence (not someone who subsequently buys the property from that owner) can claim a contribution from a neighbour.

The best way to erect a fence between adjoining property is by mutual agreement between the owners. Even if this is possible notice in writing as described below should still be given. If notice is given and agreement reached, agreement about payment should also be set out prior to erecting the fence. In the event of a dispute, mediation may be an appropriate option (see below under ‘Mediation’).

SAMPLE LETTER SEEKING AGREEMENT TO SHARE COSTS

“Dear Neighbour

I propose to erect a dividing fence on the boundary line between our properties.
I propose to erect a 1.8 metre fence in supersix fencing.

I have obtained a quote from AB Fencing contractors for $400. Your share will be $200.

Please let me know within 21 days whether you agree with this proposal.

Your Neighbour”

WHERE THERE IS NO AGREEMENT

If there is no common approach or agreement, the following steps should be taken. Both steps apply whether or not the adjoining land is vacant or has been built upon.

Step 1: Notice

Give notice in writing to the owner of the adjoining land. If the land is vacant, the owner’s name may be located through the Land Titles Office. Local Government may also, for a fee, be able to assist.

The Notice must include:
• where the fence is to be built (draw a diagram) (If replacing an existing fence, ensure there is no dispute about the alignment);
• when the fence is to be erected and who should build it; and
• the type of fence proposed.

A copy of all correspondence and receipts should be kept.

Step 2: Court Action

If the other owner does not agree within 21 days, an application may be made to the Magistrates Court closest to the dispute to decide the matter.

That Court can decide:
• whether the fence is necessary;
• what type of fence should be built;
• how long it should take to build it; and
• the rate of contribution, if the fence is wholly on one piece of land.

Notice of this decision, if it is given to the other owner before the construction of the proposed fence, can compel the other owner to pay for half the value of the fence. The other owner has three months within which to comply with the agreement made (Step 1) or an order which has been made by the Magistrates Court (Step 2) unless a different period is agreed to or ordered by the Court.

If after three months the other owner’s contribution has not been received, the fence may be erected and half the costs recovered by issuing enforcement proceedings in the Magistrates Court (see DEBTS ). There is no appeal from a Magistrates Court’s decision.

WHAT TO DO IF YOU CANNOT FIND THE OWNER OF THE ADJOINING LAND

If the necessary Notice cannot be given because the owner of the adjoining land cannot be located, an application to proceed may be made to the Magistrates Court.

The Court must be satisfied reasonable inquiries have been made (such as a search at the Department of Land Information) before issuing an Order authorising construction of the fence.

A copy of this Order MUST be given to the Chief Executive Officer of the Local Government within 21 days. Failure to do this will result in an inability to recover any part of the costs from the other owner at a later date.

When the other owner (whether or not that person was the other owner when the fence was constructed) is located, they must be provided with a copy of the Court Order. If the owner considers the Order is unjust they must apply to the Court within a month of receiving the Order. If no application is made within this time liability to pay cannot be disputed. The amount payable is half cost of the fence at the time the Order was received.

ERECTION OF A FENCE ADJOINING VACANT LAND WITHOUT GIVING NOTICE OR REACHING AGREEMENT

In this situation, costs cannot be recovered unless the other owner:
• has constructed or constructs a substantial building or structure on the land; or
• has occupied or occupies a building or structure already on the land;
• had permitted or permits some other person lawfully to occupy a building or structure already on the land.

If any of the above conditions are satisfied, the other owner must be served with notice claiming half the estimated value of the fence at the date of claim. The claim for contribution from the other owner exists whether or not they were the owner when the fence was constructed. Only the owner who actually built the fence can claim a contribution from the other owner.

If the other owner objects a complaint may be lodged with the Magistrates Court closest to the dispute. Forms are available from the Court. The Court’s decision is final with no right of appeal.

If, within one month of receiving a Notice of Claim, the other owner does not pay the amount of the claim or give notice of dispute, they will be liable. Where payment is not forthcoming, recovery is through the Magistrates Court.

SAMPLE LETTER WHERE FENCE ALREADY BUILT

“Dear Neighbour

I am writing to you about the dividing fence between our properties.

I had the fence built six months ago. The cost was $400. Enclosed is a copy of the invoice we received from the fencing contractor.

I would like to discuss arrangements for payment of your share of the fence which is $200.

If you do not agree with this please advise me in writing within one month.

Your Neighbour”

REPAIR OF DIVIDING FENCE

The general rule is that when a dividing fence is in need of repair the owners of the land on either side are each liable to pay half the cost of those repairs. The Act defines the word “repair” as including “re-erect and realign” so the provisions which deal with repairing a dividing fence apply in the same way to fences which need realignment or re-erection.

If repairs are needed, give written notice describing the repairs to be made and proposing:

• repair of the fence upon agreement to share costs;
• permission for the other owner to repair the fence and agreement to meet share of costs; or
• agreement to pay half the cost of having the fence repaired by a third party.

The other owner then has 14 days within which to object in writing. If this occurs, an application to the nearest Magistrates Court is necessary.

Where agreement is reached or an order made, both owners must allow access to enable the fence to be repaired and must also allow for the clearing of the fence line. Enforcement of an agreement to pay or any orders to pay is through the Magistrates Court.

Where a fence is damaged or destroyed through a storm, flood, fire or accident etc, then either neighbour may immediately repair the fence without notice to the other and then recover half the expenses from doing so from their neighbour, either by agreement with them or, if necessary, through court action.

Where the damage has occurred through fire or a fallen tree and there is an element of neglect involved by the owner on whose land the fire originated or the tree fell, then that owner may be bound to repair the fence solely at his/her own cost.

SAMPLE LETTER ABOUT REPAIRS TO FENCE

“Dear Neighbour

The fence dividing our properties is in need of repair because a number of pickets are missing (or three of the supersix sheets are cracked, etc.).

I propose that we have AB Fencing Contractors do the work and that we share the cost equally. I have obtained a quote for the work for $120. A copy of the quote is enclosed. Please let me know within 14 days whether you agree with this proposal.

Your Neighbour”

LANDLORD AND TENANT

Tenants are not responsible for contributing to the cost of construction or repair of a dividing fence unless the term of the lease is for a period of five years or more.

If the term of the lease is between five and seven years, the landlord must pay three quarters of the cost and the tenant one quarter (“the cost” here means half the total cost of construction or repair of the fence).

If the term of the lease is longer than 12 years, the tenant must pay the whole of the amount due (that is, one half the total cost).

STRATA TITLES

Where adjoining land is owned under a strata title, a claim against the owners for their contribution may be made. Who owns the land may vary. The owners may be:

• the strata company; or
• another person, depending on the nature of the strata scheme, the by-laws of the strata company and whether a person has lodged a notice for recording on the strata/survey-strata plan with the Registrar of Titles in accordance with section 123A(3) of the Strata Titles Act 1985 (WA).

To find out from whom to claim a contribution:

• the name of the Strata Company can be obtained from the Department of Land Information, Land Titles Division and will be “the owners of (name of the building)” and the number of the strata plan;
• information about the type of strata scheme, the by-laws of the strata company and whether a notice has been recorded on the strata/survey-strata plan can be obtained from the Department of Land Information, Customer Services Branch (contact details at the end of this chapter).

NOTICES

Notices under the Act must be:

• in writing;
• served by either:
– delivering it in person; or
– sending it by registered mail addressed to the person’s usual or last known place of residence.

If the notice is to be given to a company it may be served by:

• delivering it to the head office of the company in the State in which the company is incorporated; or
• sending it by registered mail to the company’s principal office.

Strata Title matters can be complicated. It is essential that notice be given to the proper owners or unnecessary costs may be incurred by the applicant. It is recommended that legal advice be sought before commencing actions in respect of strata titles.

RETAINING WALLS

The person who changes the land level by digging or building up is responsible for building a retaining wall to make sure that there is no risk of earth movement.

If both neighbours change the land level, then each neighbour will be responsible for building the retaining wall and maintaining it. The amount that each owner pays will depend on how much each has changed the land level.

Any person buying a property with a retaining wall is responsible for maintaining it.

A building licence is usually required for the construction of a retaining wall above a particular height. Further information should be obtained from the local Council or Shire about building requirements before a retaining wall is built.