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. 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 the Magistrates Court to be a sufficient fence. If you want to erect a dividing fence of a higher standard than an 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.
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
Useful Contact Numbers and Links
Further FAQ's - https://www.abodestrata.com/faq
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