Dividing Fence Act

Dividing Fence Act Guide

Click the image above to view the full Dividing Fence Act guide

What is a Dividing Fence?

 

A dividing fence 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. A dividing fence does not include a retaining wall. The Act does not apply to the Crown (government) or to land used for public purposes such as roads and paths under the control of local governments. This means that if your property adjoins such land you have to pay the full cost of the dividing fence. Local government laws regarding fences or what is a ‘sufficient fence’ will still apply.

 

Sufficient fence Local governments may have local laws that prescribe what is a sufficient fence. If you want information on what type of fence is allowed in your area, contact your local government.

 

A ‘sufficient fence’ is:

 

  • a fence prescribed by a local government law; or

  • a fence of any standard agreed upon by adjoining owners provided that it does not fall below the standard prescribed by the relevant local government law. Where no local law or no agreement is made, a sufficient fence is:

  • a substantial fence that is ordinarily capable of resisting the trespass of cattle and sheep; or

  • a fence determined by a Magistrates Court to be a sufficient fence. If you want to erect a dividing fence of a higher standard than a sufficient fence and cannot obtain the agreement of the adjoining owner, you may only claim half the cost of erecting and maintaining a sufficient fence.

Dividing Fence Process

Owners may decide what they want as long as it does not conflict with the local laws. If your local government does not have any local laws covering fences, you are still obliged to contribute a half share of the cost of constructing a sufficient fence. Checking out the type of fencing that has been erected in your area will give you a good guide as to what is accepted as the fencing standard.

 

Step 1: Notice

Giving notice if you wish to claim half the cost of erecting a sufficient fence and avoid any disputes over payment, you should approach the owner of the adjoining land to discuss your proposal and reach an agreement.

 

The Act provides a mechanism for sharing the cost of the fence.

The procedure is to give notice in writing to your neighbour describing the proposed dividing fence including materials to be used, costs, and specifying the boundary line to be fenced.

 

Please find below documents already made up for you by Abode Strata of sample letters for giving notice to erect a fence, effect repairs and to claim contribution for the cost of a fence.

Sample letter to erect a new dividing fence.docx

Sample claim for a fence already erected.docx

Sample letter to repair an existing fence.docx

If you do not know the name and address of the adjoining owner, the rates section of your local government may provide this information.

Alternatively you may wish to arrange a land title search through Landgate.

               

Each notice must be served by either:

• delivering it in person; or

• sending it by registered mail 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 officer.

 

You may wish to attach a copy of this booklet to your written notice. If agreement is reached with your neighbour confirm the agreement in writing and get it signed by all parties. Include details in your written agreement about when payment is to be made.

 

Whether agreement is reached or not, you should always keep copies of all quotations, documents and receipts.

 

If you and your adjoining owner cannot agree, then the use of an independent mediator may help.

 

Mediation helps to sort out civil disputes in a confidential and non-threatening way. Details of mediation services available are listed in the Yellow Pages under ‘Mediators’.

 

Step 2: Court Action

The adjoining owner has 21 days to respond or write back if they dispute all or any part of your proposal. If you are unable to reach an agreement within that time, the matter may be referred to the Magistrates Court nearest to where the fence is situated. Contact your nearest Magistrates Court to find out the procedure for lodging a complaint with the court. Either owner may make an application to the Magistrates Court. In making its order, the court will consider the type of fence typically constructed in the area, how the lands are used and any local laws prescribing the type of fence for your area. Where the owners agree, or where the court orders the erection of a fence, the owners must fulfil their obligations within the specified time or within three months if no time is specified. If an owner does not fulfil their obligations within this time, the other owner may complete the work and recover half the costs from the owner in default by making an application for an order in the Magistrates Court.

 

The Magistrates Court can be contacted on (08) 9425 2247. An application for an order can be obtained online from www.magistratescourt.wa.gov.au

Frequently asked questions

How do I replace my dividing fence?


Firstly, one must see who owns this fence, is it

  1. common property – if so a request would be sent to your strata company Abode Strata Maintenance Request
  2. owned by yourself and your neighbouring lot owner / crown land – refer to Dividing Fence Act

A dividing fence 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.

A dividing fence does not include a retaining wall. The Act does not apply to the Crown (government) or to land used for public purposes such as roads and paths under the control of local governments. This means that if your property adjoins such land you have to pay the full cost of the dividing fence. Local government laws regarding fences or what is a ‘sufficient fence’ will still apply. Sufficient fence, Local governments may have local laws that prescribe what is a sufficient fence. If you want information on what type of fence is allowed in your area, contact your local government.




Do I need my adjoining neighbours agreement before I erect a new fence?


If you wish to claim a contribution and the adjoining land is not vacant, there must be an agreement or a court order in place before erecting the fence. Where the adjoining land is vacant, you do not need an agreement. Once the fence is erected a claim for a contribution can be made on the owner when there is a substantial building erected on the land, or when the land owner occupies or permits the occupation of any building on the land. You do not need an agreement if you want to erect the fence entirely at your own expense, and forego any right to a contribution under the Act. The fence you erect must still be a ‘sufficient fence’. If you decide to erect a fence at your own expense, it is recommended that you give the adjoining owner the details of the proposal as a courtesy, and to enable them to make arrangements to protect their property or animals during the construction process. A decision to erect a fence entirely at your own cost does not give you the right to enter the adjoining owner’s property without their permission during construction.




Do I have to have more than one quote to give to my neighbour?


The Act does not specify a requirement for the obtaining of quotes but it is suggested that you should try to obtain at least two written quotes.




My neighbour is going to build a wall along the boundary, and I am concerned about how it will look from my side?


This is not covered by the Dividing Fences Act 1961 however, under section 88(3) of the Building Act 2011, an outward facing wall along the boundary which forms part of a garage, shed, or building is required to be of a reasonable standard. Local government may, for the purpose of imposing a condition on a building permit, or making a building order, specify the way in which an outward facing side of a close wall must be finished. Contact your local government for further information.




Can I take down the existing dividing fence without my neighbours agreement?


Once a dividing fence is erected, it becomes joint property. Both adjoining land owners are liable to maintain the fence, regardless of the contribution made to the cost of its erection. Therefore either party cannot remove, alter or damage or in any way affect the structural integrity of the dividing fence. I am about to put up my new dividing fence and want to know where on the boundary it should go.

Does it have to be located wholly on my property?

The fence should normally be placed along the boundary line, with half the structure in each property. Where this is not practical you may agree to locate the fence wholly in one or other property. You should record an agreement to do this in writing. The Act allows for a fence to be considered a dividing fence even when it is not on the common boundary. This means both neighbours can be asked to contribute to the cost.




What should I do about my neighbour who is refusing to pay for half of the cost of the fence?


Mediation services may be used to assist with dispute resolution. If the former attempts fail, the Act provides that the matter may be settled through the court however, it is recommended that you try to resolve the issue through discussion with your neighbour first.




Claiming for a fence erected on vacant land?


No, not unless you have agreed to contribute before the fence is erected or unless the adjoining owner obtains a court order, before the fence is erected, requiring you to contribute. My lot was vacant and my neighbour has constructed a brick fence, do I have to pay for half of it? Yes, only if the minimum standard for a fence in that location is a brick fence.

The minimum standard could be as a result of the local government’s fencing local law or town planning scheme, or through a condition of sale imposed by the developer as a covenant. As a general rule you would have to contribute half the cost of a sufficient fence, this being the minimum standard required by your local government.

Dividing fences - a guide 27.




I am about to  build and do not like the fence my neighbour just erected and I do not want to pay them anything. Can I do this?


No, if the fence that is erected is a sufficient fence; is acceptable to the local government; and is in keeping with other fences in the immediate area, the adjoining landowner who erected it has a legal right under the Act to claim half payment of a sufficient fence when you complete your building. My neighbour built their house first and erected a fence that I did not like. I wanted a green colorbond and they erected a wooden one. I have since built my house and erected a fence on my land. My neighbour has now given me a bill for the fence they erected. Do I have to pay? Yes, the original fence is the dividing fence and you would be required to pay half the cost of it and also bear responsibility for a half share of the ongoing maintenance costs of the dividing fence. The cost for the erection and ongoing maintenance of the second fence would be yours entirely.




My neighbour has claimed from me half of the cost of the dividing fence he/she erected. I am the second owner of the property and feel that they should have got their money from the previous owner. Am I liable to pay the money claimed?


Yes, an owner or owners of adjoining land are liable to pay even if they were not the owners of the land when the fence was constructed, provided that no previous adjoining owners had paid a claim to the owner who erected the fence. The Act does not specify any time limitations for seeking a contribution of costs between owners. If you are concerned that you may have run out of time to claim from your neighbour you should seek independent legal advice. 28 Dividing fences - a guide.




My neighbour and I are at about the same stage of building houses and cannot agree on a fence as we both want different materials. What can I do about this one?


The best way to erect a fence is by agreement with the adjoining owner. You should first try to resolve any differences by discussing the matter with the owner. You may wish to consult a mediator, who can assist you in resolving differences. If you cannot reach an agreement, the matter may be referred to the Magistrates Court.




My neighbours fence is ten years old. Do I have to pay for half the value of the fence when is was constructed or what it is worth now?


The requirement is for payment of half the value of the fence as at the date of claim. The person making the claim has to estimate the value. If your neighbour erected a fence of a higher standard than a sufficient fence, as defined by your local government, unless you agreed to pay the higher cost, you would only have to pay half the cost of a sufficient fence. If for example, a metal fence was erected and the sufficient fence, as defined by your local government, is a fibrous cement one, the obligation is for payment of half the cost of the lesser standard fence, being the fibrous cement one. The additional cost for the higher standard fence would be borne by the adjoining owner that requires it.




The dividing fence has been damaged by my neighbours. Why should I have to pay for half of it?


As a general rule, each of the adjoining owners must pay half the cost of repairs unless the adjoining owners agree to an alternative arrangement or the court rules differently. The Act provides for specific situations when one owner who is ‘at fault’ pays the whole cost. These specific situations are where the fence is damaged by fire or by the falling of a tree, or part of it. There must be an element of neglect by the owner at fault in these specific situations. My land survey shows that the dividing fence is out of alignment and my adjoining owner has some of my land.




Who pays for the cost of the relocation of the fence onto the correct boundary and what steps should be followed to shift the fence?


The Act defines the word ‘repair’ as including ‘realign and re-erect’, so the provisions which deal with repairing a dividing fence also apply to fences which need realignment or re-erection. You should give the necessary notice and obtain agreement before commencing work to realign and reconstruct the fence on the correct boundary line. If you are constructing an entirely different type of fence this may be considered erection of a new fence, in which case the procedure for erecting a new fence should be followed.




I am happy with my fence however, the neighbours are wanting to buy a new one. Do I have to pay for half of a new fence when I don't want it?


No, you would not have to pay for a new fence unless you agree to this or your neighbour takes you to court and is successful in obtaining an order for you to contribute to a new fence. In such a dispute, it would be necessary for the owner taking the legal action to prove that the fence is in need of replacement and cannot or should not be repaired. That owner would generally seek to support such a case to the court with photographs of the existing dividing fence and a report or testimony from expert witnesses or building practitioners.




My neighbours trees are pushing against the fence and have damaged it. I have asked that they either cut the trees down or trim. They will not agree and wish to only pay for half of the repair cost. What are my rights?


You would be required under the Act to contribute to half the cost of the repairs to the fence. If you refuse to pay your neighbour may seek a court order. For more information on tree nuisance, such as tree roots and overhanging branches visit www.legalaid.wa.gov.au




Do I have to contribute to the repair of the dividing fence if my land is vacant?


Yes, subject to Part III Sections 14 and 15(3) of the Act. 32 Dividing fences - a guide The neighbouring property is owned by the Department of Housing and the fence is in need of repair.

What should I do?

State Government departments are not bound by the Act, however, you should contact your nearest Department of Housing office to discuss the repair or replacement options.

Who is responsible for a retaining wall (whether on the boundary or close to the boundary) to prevent soil build-up from pushing over a fence?

The Act does not deal with different soil levels between adjacent land owners. One owner may allow soil build-up and the other may excavate soil away from a fence. It is recommended you seek independent legal advice with respect to liabilities and obligations in these circumstances. Should soil levels be changed as a result of building or demolition work undertaken by one party under a building permit, then the ‘Work affecting other land’ provisions of the Building Act 2011 may apply.




What actions do I take to fix my dividing fence?


If the fence is common property please complete the form and your strata council will review the maintenance item asap.

If the fence is part of my lot, my responsibility ( community association scheme or as otherwise noted as part lot on the strata plan ) not common property, damaged by incident or accident then you can complete an Insurance Claim form. If the fence is part of my lot and part of another owners lot or neighbouring property. You will need to get in contact with the neighbours and arrange for them and their insurance company to pay the other half. We suggest obtaining a quote and presenting it to the neighbours to agree on and then once you both agree on the same quote, to then make a claim and get the insurance company to approve you going ahead with that quote.

Given it is a dividing fence and shared by two parties, your insurance company will reimburse you for 50% of your fence minus your Insurance claim excess ( from $300 - $1000.00 depending upon your policy) Your neighbour, being common property, neighbouring lot, or another adjoining property would also make a claim for the other 50% and pay an excess to their insurer.




Is my fence common property?


If your scheme was created prior o 30th June 1985, the building and areas outside the buildings are common property. Unless the boundaries have been moved by a resolution of the strata company at some time after 20th January 1997. This can be reached with Landgate. Common property is owned by all proprietors as tenants in common. This therefore confirms that the common areas, including fences, are the responsibility of all owners to repair, maintain and renew.





Useful contact numbers and links

Citizens Advice Bureau (08) 9221 5711 for access to community lawyers/mediators www.cabwa.com.au email: cab@cabwa.com.au

 

Magistrates Court 9425 2247 to resolve civil disputes in a court of law www.justice.wa.gov.au or www.magistratescourt.wa.gov.au/

 

Landgate (08) 9273 7341  for title searches or possession information www.landgate.wa.gov.au email: mailroom@landgate.wa.gov.au

 

Health Department (08) 9222 4222 for removal and disposal of asbestos www.health.wa.gov.au

 

Department of Local Government (08) 9217 1500 to obtain a contact number for your local government office www.dlg.wa.gov.au email: info@dlg.wa.gov.au

 

State Law Publisher (08) 6552 6000 to view legislation www.slp.wa.gov.au email: sales@dpc.wa.gov.au

 

Department of Commerce, Consumer Protection 1300 30 40 54 for consumer advice www.commerce.wa.gov.au email: consumer@commerce.wa.gov.au

© 2003-2019 by Abode Strata. Privacy Policy
The advice within is general and has been prepared without taking into account any specific or personal objectives, financial situation or needs.

Please also note this general advice was provided prior to the new strata title amendments were proclaimed and will be updated in due course.

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