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Ask
I have an ongoing issue with my neighbor over a fence that separates our property and I'm not sure what my rights are. The fence is old and falling apart. I've tried talking to my neighbor about replacing it, but they keep saying it's “not their problem” and refuse to cover the cost. I even sent them a quote from a fencing company but they still won't budge. It doesn't seem fair to me that I have to pay for the whole thing if it splits our two properties. What legal rules apply to sharing the costs of a border fence? Is there a way to get them to pay their share or at least come to an agreement?
Answer
Fences are a common cause of disputes between neighbors and can lead to disputes over who will pay for a new fence, what type or height the fence is, and who will perform fence maintenance.
The term “fence” is defined quite broadly in the law and includes any structure that separates property, including a ditch, embankment or hedge, but does not include a retaining wall.
Each state and territory has its own legislation, but the general principle is the same: neighbors will usually have to contribute to the cost of an 'adequate' dividing fence and the cost of any maintenance due to age or wear and tear.
In your case, it seems pretty clear that as far as the law goes, you and your neighbor should share the cost of the new fence.
However, it sounds like it won't be as easy as it should be and you'll have to overcome the challenges together with your neighbor.
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Alison and Jillian Barrett are principal lawyers at Maurice Blackburn, Australia's leading plaintiffs law firm.
You did the right thing by getting an offer and presenting it to your neighbor. It would be more beneficial to your position if you obtained more than one quote and also price comparisons between a completely new fence and a repair.
You should then write a letter to your neighbor outlining your proposal and the options available, and attaching a copy of any offers.
Keep a copy of this letter.
If for some reason the type of fence you want goes beyond the standard or you want to carry out additional work, such as: For example, changing the height of the fence to contain a dog or changing from a simple wooden fence to a pre-painted steel fence, you will need to finance the cost of any additional work.
If your neighbor wants to get quotes themselves, they can do that too.
Assuming they stick to their guns and continue to refuse to pay for the fence, there are further steps you can take:
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New South Wales: Neighbors must share equally in the costs of building, repairing or replacing a dividing fence. If you cannot reach an agreement, you can contact the NSW Civil and Administrative Tribunal (NCAT) or a Community Justice Center for mediation.
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Queensland: Both owners must contribute equally to an “adequate” fence. If your neighbor refuses, you can issue a fence notice and, if necessary, make an application to the Queensland Civil and Administrative Tribunal (QCAT).
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Victoria: Costs are shared and there is a formal dispute resolution process. You can contact the Dispute Settlement Center of Victoria or take the matter to the Magistrates' Court.
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Western Australia: The cost is generally shared, but if a neighbor wants a higher standard fence they will have to pay the difference. Disputes go to the district court.
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South Australia, Tasmania, ACT, NT: Every country has similar laws that require shared responsibility. If an agreement cannot be reached, mediation or litigation may be necessary.
Going to court may involve costs and you will need to provide evidence. Therefore, you should document your attempts to reach an agreement with your neighbor.
This information is general in nature and should not be relied upon as specific legal advice. For legal advice regarding a specific situation, please contact a qualified attorney.
The content in this column reflects or is inspired by real-life experiences. Some details can be customized.
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