Recently I have had enquiries around the law relating to dividing fences between neighbouring properties. Unfortunately sometimes disputes arise between neighbours with disagreement over who pays for the building and upkeep of a fence, the type of fence to be built, the boundary line and so on. Your legal rights regarding a dividing fence are contained in The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
Interestingly, a fence does not just mean a line of posts and wire or panels but can be anything that encloses land such as a ditch, embankment, hedge or creek. It includes cattle grids, gates and the like that forms part of the enclosure.
Where the fence is built on the common boundary it is owned equally by the adjoining owners. However if it is built on one neighbours land even if the other neighbour paid for half the costs, it belongs to the property owner on which the fence is built. That is why it is important to have a survey undertaken to identify the common boundary.
The basic rules for dividing fences are :- 1. There should be a ‘sufficient’ dividing fence if an adjoining owner requests one- even if one or both pieces of land are vacant; 2. Usually neighbours must contribute equally to the cost of building and maintains a dividing fence; 3. Nothing should be attached to the dividing fence that could damage it; and 4. Generally issues about dividing fences need to be resolved by the owners of the land and if you are a tenant you should refer queries over a dividing fence to the property owner or agent.
You do not need a dividing fence if :-
– you and your neighbour agree you do not need one;
– either property is outside the scope of the Act such as public land or a stock route;
– both properties are classed as agricultural land; and
– there is no owner of the land such as land under the Nature Conservation Act 1992.
Agricultural land is defined in the Act as ‘rural land of more than a half hectare used for cultivating crops on a commercial basis regardless of whether the land is also used for residential purposes’.
Where disputes can’t be resolved by the owners themselves or through mediation then proceedings may be brought in the Queensland Civil and Administrative Tribunal (QCAT). As I have said before in my articles, issuing legal proceedings should be a last resort given it is much preferable to try and remain on good terms with your neighbour.
More information can be found at www.qld.gov.au>law>your-responsibility-as-a-fence-owner.
As always you are encouraged to seek your own legal advice to understand your rights and obligations as a dividing fence owner.
Brett Moller – Consultant Lawyer -Vandeleur & Todd Solicitors
Tel: 4063 5900