Sisters In Law: Does my neighbour have to pay for a shared fence?

A woman is scared to approach the man next door after he told her to “f**k off” over a common neighbourhood problem.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise on who has to pay when a shared fence needs replacing.

Question:

I live on a beautiful street of old terrace houses where all of the houses are quite close together. Previously, my neighbours have been wonderful and I’ve had no issues over who need to prune the hedges on their side of the garden or fix a broken fence that runs between two houses.

However, around two years ago a really despicable man moved in next door and he’s beginning to make my life hell. We share a fence that sits on the boundary line of our homes. It was installed 15 years ago and is in dire need of repair or replacement.

I broached the subject with my neighbour and was rudely told: “You can f*ck off if you think I’m paying for your fence.”

I don’t expect him to pay the full amount but I do think we should share costs. What are my rights? The current fence is one storm away from falling down completely but I’m scared of asking my neighbour to pay his half. – Jude, NSW

Fences often cause neighbourhood disputes. Picture: iStock

Answer:

Fences are a common cause of disputes between neighbours, and may involve clashes over things such as who pays for a new fence, the type or height of the fence, as well as who does maintenance on the fence.

A “fence” under the law has a fairly broad definition and covers any structure that divides property, including a ditch, embankment or hedge, but not a retaining wall.

The general rule, which applies in your case as your fence is on the boundary line, is that both owners own equal shares in the fence and the cost of any upkeep caused by age or wear and tear.

It seems pretty simple in your case, as far as the law is concerned, that you and your neighbour should be splitting the cost of the new fence.

However, it does sound like it is not going to be as simple as it should be, and you’ll need to navigate through the challenges with your neighbour.

First get a few quotes to present to your angry neighbour. Picture: iStock

We’d suggest the first thing you do is get some quotes for the fence to be repaired and also replaced.

It will be more beneficial for your position if you get more than one quote and also price comparisons between an entirely new fence and a repair.

You should then write your neighbour a letter that outlines your suggestion and the options available, and attach a copy of the quotes.

If for any reason the type of fence you want is beyond what is standard or you want additional work done, for example raising the height of the fence to help contain a dog, you will need to fund the cost of any extra work.

If your neighbour wanted to obtain quotes of his own, he could do this also.

Assuming he sticks to his guns and refuses to pay for the fence, there are avenues you can take as a last resort.

The NSW Civil and Administrative Tribunal (and the Local Court) hears disputes about fences and can make a final decision that is enforceable.

You can take the matter to tribunal. Picture: iStock

To have a dispute heard in the Tribunal you have to follow a process which starts by you providing your neighbour with a Fencing Notice.

There is no set form for this Fencing Notice, but there are a number of things you must set out including:

1. Notification that the document is a Fencing Notice under the Dividing Fences Act 1991

2. Address and contact details for yourself and your neighbour

3. Precise details about the type of work you want done

4. Information about who will do the work, when, and how long it will take to complete

5. The estimated cost and the suggested cost split.

The quotes you have obtained should be included also.

Keep a copy of the Fencing Notice and record the date you provided it to your neighbour, as he has one month to respond. Sending it by registered mail will be useful.

If there has been no agreement or response within a month, that is when you can apply to the Tribunal for a Fencing Order.

Send a Fencing Notice to your neighbour via registered mail. Picture: iStock

To do this you are required to fill in a formal application form and pay a filing fee.

Immediately before the scheduled hearing, the Tribunal will ask you and your neighbour to try to come to an agreement by way of a conciliation.

Assuming this does not occur, the dispute will be heard by way of a hearing.

You will need to be thoroughly prepared which includes collating any evidence you have (at the very least the Fencing Notice, proof of when it was sent to your neighbour, photographs of the fence and copies of any communications between you and your neighbour about the fence).

Both sides can present their case to the Tribunal. Picture: iStock

After you have the opportunity to present your case, your neighbour will then present his case.

Usually the Tribunal member will make a decision on the day of the hearing and give you a brief outline of why the decision was made. This decision is then enforceable.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

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Originally published as Sisters In Law: Does my neighbour have to pay for a shared fence?