Pursuant to the Dividing Fences Act 1991, (hereinafter referred to as “the Act”), the general principle states that the liability for costs in relation to erecting a fence is to be shared equally between the two adjoining owners of the property. The costs should be reasonable and of a sufficient standard. If an owner wishes to have a fence of a higher standard, then that owner is liable for the extra costs of the sufficient standard otherwise required. Where the fencing work includes special requirements for enclosing a swimming pool, these extra expenses must be met by the owner of the property that contains the pool (pursuant to Swimming Pools Act
Under the Act, a dividing fence is defined to be a fence separating the land of adjoining owners.
The procedure outlined in the Act, requires a neighbour to contribute. A fencing notice should in fact be issued by the other adjoining owner to his or her neighbour outlining the details of the proposed work. Where the neighbour is a tenant, the fencing notice should be issued to the owner. It can only be issued to the tenant where the unexpired term of tenancy is five years or more.
If the parties cannot agree on fencing work, you can either apply to the Local Court or NSW Civil & Administrative Tribunal (NCAT) for an Order deciding the matter. Pursuant to the relevant Sections outlined in the Dividing Fences Act 1991, where a fence has been damaged or destroyed, the owner can carry out the urgent work without first issuing a notice, if the circumstances make it impracticable. However, the adjoining owner is still liable for half the costs.
If you and your neighbour can agree on the location, type of fence, the costs and the fencing work involved, we would strongly recommend that the terms of the agreement be put in writing. Once written, kindly retain a signed copy of the same. The agreement should cover all the relevant details including costs, design, height, type of material, colour, costs, position of the fence, arrangements or for the removal of any existing fence, and any other additional work that would be done in the future and if any additional work has to be done in the future, who would in fact cover those costs.
If you have any issues relating to fence and neighbour disputes, please do not hesitate to contact Freedman & Gopalan Solicitors on telephone: 02 8917 8700, to discuss the same.