Issues around repairing or replacing a shared fence, damage to fences and boundary issues can all contribute to disputes between neighbours.
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When you need to replace, repair or build a new fence it’s important to:
A dividing fence separates two pieces of land. It usually runs along the common boundary between the two properties.
Both neighbours have the same rights and obligations when it comes to building or repairing a dividing fence, even if it’s not located on the common boundary.
But this will depend on whether:
You may also need to share the cost of more than just the fence itself. This can include things like:
The law in Victoria doesn’t say how tall a fence should be or what it should be made from. It says that neighbours should contribute equally to a ‘sufficient dividing fence’ which depends on things like:
For residential properties, a sufficient dividing fence might be a 1.8 metre timber paling fence. For rural properties, a sufficient dividing fence might be a wire and post fence.
Different council areas may have different rules and regulations. Check your local council’s website (External link) for information about fencing in your neighborhood.
If you don’t know who owns the neighbouring property:
If you still can’t find the owner you should get legal advice. If you want the owner to contribute money you’ll need a Magistrates’ Court order before any work begins.
If you or your neighbour want something different like a higher fence or one made of more expensive materials, the person who wants this pays the difference in cost between a sufficient dividing fence and the higher standard. If you both agree, you can share the extra cost.
If you and your neighbour can agree on where the rails and framing of the fence should face, then you can build as agreed. If you can’t agree, the law says if the dividing fence is:
If there’s no existing dividing fence, the rails and framing should go on the side least subject to weathering.
It’s normal to feel nervous about approaching your neighbour, especially if you don’t have an existing relationship or you've had issues with them in the past. But it’s a very important step to resolve the issue.
You need to have your neighbour’s consent or to have followed the right legal process before any work starts. If you don’t, your neighbour is not legally obliged to pay anything.
It can be frustrating if you’ve tried to approach your neighbour and they won’t engage with you.
Don’t assume that it means that they don’t want the problem solved. Your neighbour might have issues you’re not aware of. Try to think about it from their perspective:
Think about what you could do differently to encourage them to talk, and what might help them to feel comfortable about talking to you.
If you have a history of difficulty with your neighbour, approaching them to talk about a new issue can feel difficult or overwhelming. Think about:
If you’re concerned about your personal safety, using a neutral third party such as a mediation service can help you to have a conversation in a controlled environment.
A Fencing Notice is a formal document that outlines a proposal to repair, replace, or build a new fence.
Your neighbour has 30 days to respond from the day they receive the Fencing Notice. It’s a good idea to send it to them by registered post (External link) so there is proof that they have received it.
If they agree, you can build as per your proposal. If not, you’ll need to negotiate a solution.
If it’s urgent due to fire, flood, or damage, and you don’t have time to issue your neighbour a Fencing Notice, you can proceed with the works without giving notice and without their agreement. You should at least talk to them about what you’re going to do.
If you want your neighbour to contribute, you need to give them an Urgent Fencing Notice listing the type of fencing works done, the cost, and why it was urgent. That way your neighbour has an opportunity to have a say. If they don’t agree with what you did, you will have to go to the Magistrates’ Court to get payment.
It’s a good idea to let them know about what you’d like to do with the fence before you send a Fencing Notice. That way it won’t be a surprise for them.
If a neighbour doesn’t respond to a Fencing Notice within 30 days, the fencing works can begin without their agreement.
You can take action in the Magistrates’ Court of Victoria to recover their share of the costs.
If you agree on everything, many people just sign the agreed quote for the job to formalise the agreement.
But keep in mind that if you don’t use a Fencing Notice, it’s harder to prove there was an agreement if something goes wrong. Without a Fencing Notice any dispute will be settled under contract law and not the Fences Act. This will make it a lot harder to resolve a dispute.
Going to court can be expensive and takes time. Talking to your neighbour is almost always cheaper, fairer and simpler than going to court. Court should be the last step that you take to resolve your issue.
Think about the potential damage that going to court could do to your relationship with your neighbour. Taking this issue to court may start a pattern of involving a third party in any future issues, big or small.
If you and your neighbour still can’t agree, you can take it to your local Magistrates’ Court (External link) . A magistrate will decide:
It’s important to know that the Magistrate’s role is to decide on the points of law about your fencing issue only, not any other issues surrounding it. Because the Magistrate may not address everything that’s important to you, you might not end up with the outcome that you want. This is why you’re much better off negotiating a solution with your neighbour.
For more information about the court process for fencing disputes visit the Magistrates’ Court website (External link) .