Introduction

Dividing fences are structures that separate adjoining properties. A dividing fence can be of any material (brick, paling, Colourbond, stonewall) or vegetation. Typically, a dividing fence runs along the boundary line but may be situated on one side if agreed upon by neighbours. In New South Wales, the responsibility for maintaining these fences is governed by specific legislation, the Dividing Fences Act 1991. This article examines the key aspects of dividing fence regulation, focusing on who manages their construction, maintenance and repair.

Key takeaways from the Act

The Dividing Fences Act outlines the rights and obligations of adjoining landowners on dividing fences. It establishes a framework for resolving disputes and ensuring fair contribution to the cost of fencing work.

  • Shared responsibility: Generally, adjoining landowners are jointly responsible for the cost of construction and maintaining a sufficient dividing fence. Each owner is liable for 50% of the total cost. For example, if a fence is damaged due to natural causes, both neighbours usually share the cost of repairs.
  • Sufficient Dividing Fence: The Act defines a ‘sufficient dividing fence’ as one that is suitable for the purpose for which the adjoining land is used or intended to be used. This can vary depending on factors such as the type of property, local conditions, and the needs of the adjoining landowners.
  • Contribution Notices: If the landowner wishes to improve or repair a dividing fence, they must serve a contribution notice on the other owner. This notice outlines the proposed work and requests a contribution towards the cost.
  • Dispute Resolution: If a dispute arises on the nature, standard or cost of a dividing fence, the matter can be resolved through negotiation, mediation or by applying to the Local Court or the Land and Environment Court.

Exceptions:

Within the Act, certain situations effect the liability for the construction, maintenance, and repair of dividing fences differently, with costs not always being split equally at 50%.

  • Existing Fences: If a sufficient dividing fence already exists, neither owner is bound to contribute to its replacement or improvement unless it becomes insufficient.
  • Negligent or Deliberate Damage: If a fence is damaged or destroyed due to the negligent or deliberate act of one owner or someone acting on their behalf, that owner is solely responsible for the cost of repairs.
  • Urgent Repairs: In cases of urgent repairs, one owner can undertake the work without prior notice and recover the costs from the other owner, subject to certain conditions.

Practical Tips for Property Owners

Understanding the responsibilities associated with Dividing Fences is critical for property owners. The provisions within the Dividing Fences Act allow landowners to effectively manage their obligations and resolve any dispute that may arise. To minimise disputes:

  1. Communicate Early: Open discussions with neighbours can help clarify expectations and prevent conflicts.
  2. Document Agreements: Any agreement regarding the construction, maintenance or repair of a dividing fence should be documented in writing.

If you are unsure about your obligations or rights regarding Dividing Fences, please contact our team at wmd@wmdlaw.com.au or on 9525 8688

Sources:

Dividing Fences Act 1991