Neighbourhood Fence Disputes
Dividing Fences are a common cause of tension between neighbours, so it is important to know your obligations and to understand a pathway to resolving issues that arise in an amicable way. An agreement may need to be reached between neighbours regarding the construction of a new fence, maintenance of an existing fence or replacement of an existing fence. In Queensland, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 contains the law as it applies to neighbourhood fence disputes.
What is a dividing fence?
We refer to a fence between neighbouring properties as “a dividing fence” because it is usually constructed on the boundary between the two properties. If this is not possible because of physical features of the land, the fence may need to be constructed entirely within one of the properties. A fence built on the boundary of two properties is owned equally by neighbouring properties, and a fence built wholly within one property belongs to that property. If you are intending to ask your neighbour to contribute towards the cost of a dividing fence, it must be built on the common boundary. There is no legal requirement for your neighbour to contribute to an excessive fence or an unnecessary fence. If there is a “sufficient” fence already in place, any upgrades you desire for cosmetic reasons may have to be borne solely by you.
Who can help resolve a fence dispute?
As a first step, we recommend speaking with a solicitor to ascertain whether you have a right to request your neighbour contribute to the proposed fence works. If you do, we usually suggest approaching your neighbour to discuss the matter before sending any paperwork or if this is not possible, writing to them in a polite but formal way. Communicate clearly what you are asking of your neighbour, and give them examples of what you propose, an estimate of price (calculated by a qualified tradesperson) and a suggested pathway forward (eg. suggesting a meeting to discuss).
If agreement cannot be reached
If agreement cannot be reached informally, the Queensland Civil and Administration Tribunal (QCAT) can help you and your neighbour to resolve your dispute, provided the work to the fence in question does not exceed $25,000. To start this process, there is a form of notice you must give you neighbour which must be accompanied by at least one formal quote but preferably two.
Retaining walls
Retaining walls are not “dividing fences” fences within the jurisdiction of QCAT, as they are usually built to benefit one property owner more than another. They are ordinarily not the joint responsibility of adjoining owners, rather the owner who benefits carries the burden of construction, maintenance and repairs. QCAT has limited jurisdiction for retaining walls if a fencing dispute includes work on a retaining wall.
Swimming pool fences
There are very specific requirements for pool fences and the law as it applies to dividing fences is not relevant. For more information: QCAT Dividing Fences Resources: https://www.qcat.qld.gov.au/matter-types/dividing-fence-disputes This article is current at 27 April 2021 and does not form legal advice to you.
