Fencing disputes are one of the most common causes of conflict between neighbours. · Getty
Welcome to Yahoo Finance’s legal column where lawyers Alison and Jillian Barrett from Maurice Blackburn tackle problems everyday Aussies face — whether it be consumer, property, money matters impacting relationships or work. This week, neighbours are going head-to-head over a new fence.
Question
“I put in a new fence on my property a few years ago and paid for 100 per cent of it as it was part of a garden reno. My neighbour at the time said the fence could go a few centimetres into his boundary so it could avoid having to go around an old tree that sits across the boundary. However, they have since sold their house and new neighbours have moved in. They’ve noticed that the fence sits slightly into their boundary and they want it moved at my expense. What can I do? I don’t want to pay for a whole new fence but they do have a point.”
Answer
Fencing disputes are one of the most common causes of conflict between neighbours.
Across Australia, fencing laws are governed by State and Territory legislation, but the core principles are broadly similar.
A dividing fence is generally expected to sit on the common boundary between two properties.
If it encroaches, even slightly, onto a neighbour’s land the new owners may have the right to request that it be moved.
However, the law also recognises that verbal agreements can be legally binding in Australia, provided they meet the basic elements of a contract: offer, acceptance, consideration (something of value exchanged), and an intention to create legal relations.
If your previous neighbour gave clear verbal consent to the fence’s placement, and that agreement was acted upon (such as by paying for and installing the fence), it may be possible to argue that a valid agreement existed.
However, the difficulty lies in proving it, especially if there’s no written record or witnesses.
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Alison and Jillian Barrett are Principal Lawyers at Australia’s leading plaintiff law firm, Maurice Blackburn. · William Gordon Photography
It will become even more difficult if it wasn’t stipulated in the contract of sale that the fence was within their boundary and that by purchasing the property, they agreed to this.
Even if the new neighbours are not bound by the previous agreement, that doesn’t automatically mean the fence must be moved at your expense.
In most States, fencing laws encourage neighbours to share the cost of a dividing fence unless one party has chosen a more expensive or non-standard option.
If the fence is still in good condition and serves its purpose, it may be considered a “sufficient dividing fence” under the law, and the cost of any changes could be shared.
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Further, you may be able to reach an agreement with your neighbours by purchasing that area of land that your fence is encroaching on.
The best first step is to have a respectful conversation with the new neighbours.
Explaining the history and the practical reason for the fence’s placement, such as avoiding damage to a tree, may help resolve the issue amicably.
If that doesn’t work, each state offers free or low-cost community mediation services to help neighbours reach an agreement without going to court.
If mediation fails, the matter can be taken to the relevant civil and administrative tribunal in each state or territory.
These include NCAT in New South Wales, VCAT in Victoria, QCAT in Queensland, and similar bodies elsewhere.
These tribunals can make binding decisions about whether the fence should be moved and who should pay for it.
They will consider factors such as the reason for the fence’s placement, whether it still functions as a dividing fence, and whether moving it would cause unnecessary damage or expense.
They could also order that you pay your neighbours compensation.
If the fence was originally placed to avoid damaging a tree that straddles the boundary, that may also be relevant.
Some states, such as Queensland and New South Wales, include tree-related issues in their fencing legislation, and tribunals may take environmental considerations into account when making decisions.
This legal information is general in nature and should not be regarded as specific legal advice. If you need legal advice, you should consult a solicitor.