Knowledge

17 July 2017

Dividing fences, neighbours and the obligation to pay

Neighbours do not have to have a dividing fence if each neighbour agrees.  However if one neighbour wants a dividing fence, then both neighbours of the adjoining land are responsible for the cost of building and constructing the fence.

Where a dividing fence is built on the common boundary line of adjoining land, the fence is owned equally by each of the adjoining land owners.  If the fence is not built on the common boundary line, then it is owned by the person whose land it is situated on (despite who contributed to paying for the fence).

As each neighbour owns a dividing fence equally, they each have a responsibility to contribute equally to the cost of building the fence and maintenance.  This rule only applies to a standard dividing fence, if you or your neighbour want a fence which exceeds the general requirements for a dividing fence, then the neighbour who wants the more expensive fence must pay the extra costs.

What constitutes a standard or sufficient fence? Generally a dividing fence must be between 0.5 and 1.8 metres high and made of any of the following materials: wood, chain wire, metal panels, bricks, rendered cement concrete blocks, hedge or other vegetation that creates a barrier or other material which fences are ordinarily constructed from.

Neighbours should not attach to a dividing fence anything (such as a carport, clothesline, shade sail etc) without the permission of the other owner.  If one owner causes damage to the dividing fence, then you may follow the same process in seeking your neighbour to remedy the damage.  Likewise if the fence requires maintenance during its lifetime, the process below can be followed.

Step 1: A notice to contribute

Before constructing or undertaking maintenance work on a dividing fence, you must provide to your neighbour a ‘notice to contribute’.  This notice should outline for a new fence:

  • the type of fence you propose to construct (including height and material);
  • how and when you propose to start construction;
  • its placement on the land (this should generally be on the dividing boundary); and
  • an estimated cost (including the amount of the neighbours contribution). You must include in this notice at least one quote for the fence.

It is important that you use the correct form which is available here.

For maintenance of a fence you must fill out the same form but with the details of the proposed maintenance work.

Make sure you keep a copy of the notice for your own records and note the date the notice was given to your neighbour.  If your neighbour agrees to your proposal, you should ensure that this agreement is recorded in writing.

If your neighbour does not provide you with written approval then you may not be able to claim from your neighbour their share of the costs and further, your neighbour may be able to apply to have the fence demolished or altered.

What if your neighbour won’t agree to the contribution notice?

You cannot begin construction of the fence until you have obtained your neighbours approval, unless the construction or proposed work is urgent (the legislation specifically defines when work is considered urgent).

If your neighbour has not agreed to the notice to contribute then you should always try to talk through any problems with your neighbour and find out why they are not willing to agree.  If this does not resolve any outstanding issues then you may take the further steps outlined below.  Any agreement that you and your neighbour reach in relation to the payment of costs of fencing should always be in writing.

Step 2: Neighbourhood mediation

Whilst mediation is not a compulsory step, it should be considered seriously by neighbours who cannot resolve a dispute on their own.  The service is offered for free and even if you apply to the Queensland Civil and Administrative Tribunal (“QCAT”) they may make an order requiring the neighbours to attend mediation.

Mediation involves an independent third party who will assist you and your neighbour to reach an agreement. If you cannot agree at mediation then as a last resort you can apply to QCAT.

More information on this service is available on the Queensland Government website.

Step 3: Apply to QCAT

If you cannot reach an agreement with your neighbour within one month after the notice to contribute was given, then you may apply to QCAT after a period of two months since the notice to contribute was given.  This application is made by lodging a ‘dividing fence dispute application’.

The cost of an application to QCAT is estimated to be between $24.60 and $315.70 depending on the nature of the dispute.  At the time of writing:

  • if the value claimed is less than $500.00 then filing fee is $24.60;
  • if the value claimed is between $500.00 and $1,000.00 then the filing fee is $63.20;
  • if the value claimed is between $1,000.00 and $10,000.00 then the filing fee is $112.50; and
  • if the value claimed is between $10,000.00 and $25,000.00 then the filing fee is $315.70.

The application form to QCAT is available here.

If you require assistance with resolving any dispute we would be happy to assist.  Please contact our office on 07 4036 9700.

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