Question: The house next door to one of our investment properties has been sold and the new owners recently notified us that they are planning on demolishing a garage that makes up part of the barrier between our two properties. I have no issue with them doing this, but the problem is now they are asking for me to pay 50% of the cost to build a fence where the garage wall now stands.
It’s not an outrageous cost or anything, but the garage had served as a perfectly good “fence” from my perspective. I don’t mean to be stingy, but I feel like I shouldn’t have to pay anything at all since I am not the one changing the status quo.
Can you tell me what the law is in New South Wales, and what my rights are if I want to contest this?
Answer: Dividing fences are a common source of disputes between otherwise friendly neighbours. In our firm we are often contacted by people in dispute with their neighbour around the location of fences and the responsibility for payment of repairs to or replacement of fences.
In our experience these disputes often become quite emotional and difficult to resolve. Fencing disputes in NSW are governed by the Dividing Fences Act 1991, or DFA.
The general principle under the DFA is that an adjoining owner is liable to contribute to the carrying out of fencing work where there is no sufficient dividing fence on the adjoining land. An adjoining owner is required to contribute in equal proportion to the cost of the fencing works to a standard not greater than that required by the legislation.
You are correct that the DFA also provides that an adjoining owner may be liable for the whole cost of fencing work required for restoring a dividing fence that has been damaged or destroyed by a negligent or deliberate act. But this provision would probably not apply to your neighbour if he demolishes the garage because the definition of “fence” under the DFA would exclude the wall that forms part of the garage. To this end, you may be caught by the operation of the DFA and required to contribute to the cost of a new fence as once the garage is removed (which your neighbour is entitled to do), there will not be a sufficient dividing fence.
Prior to the commencement of the fencing work, your neighbour will have to provide you with a notice specifying the boundary line, type of fencing works proposed to be carried out and an estimated cost of the fencing work. If you and your neighbour do not reach an agreement, S.12 of DFA provides that you may attend a Community Justice Centre to resolve the dispute. If this fails to resolve the dispute, you may then have to make an application to the local court for a proper Order.
Prior to commencing legal proceedings, I suggest you obtain specific legal advice about your circumstances. If you are advised that you have a legal obligation to contribute to reasonable fencing costs, it would be unwise to ignore that advice and enter into a dispute with your neighbour, which might result in expensive legal proceedings and ultimately in you having a strained relationship with your neighbour in the longer term.
- Answer provided by George Vlahakis, solicitor with Kydon Segal Lawyers and clickconveyancing.com.au.
Disclaimer: The information in this article is of a general nature only and should not be relied upon as legal advice. You should seek advice for your particular circumstances before entering into any transaction.
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