Understanding the Dividing Fences Act: Your Guide

When moving into a new home, many aspects of property management can seem daunting. One often overlooked but crucial element is the dividing fence between your property and your neighbour's. The Neighbourhood Disputes (dividing fences and trees) Act 2011, previously referred to the Dividing Fences Act of 1953 provides a legal framework to guide home-owners in Australia on this matter.

In this post, we’ll walk you through the key points of this legislation, helping you understand your responsibilities and how to navigate discussions with your neighbours.

Why Fences Matter

Fences serve as both practical and aesthetic elements in our homes. While they often blend into the background, issues can arise when it’s time to install, repair or replace them, potentially causing friction between neighbours. This is where the Dividing Fences Act comes into play.

Key Provisions of the Dividing Fences Act

The Dividing Fences Act lays out the responsibilities of property owners in relation to the construction and maintenance of boundary fences. Here are the key takeaways:

Equal Contribution: Owners of adjoining properties must share the cost of constructing or repairing a dividing fence equally, provided the fence is deemed "adequate." An adequate fence meets the standard for that area, often defined by local council regulations.
Consultation and Agreement: Before undertaking any fencing work, it's essential to have a conversation with your neighbour. This discussion should cover the type of fence, its placement, and the costs involved. For instance, if you’re considering an core filled blockwork fence (for example), it’s crucial to ensure your neighbour agrees to this style and its associated costs before work commences.
Documenting the Agreement: After reaching a verbal agreement, put everything in writing. This documentation should include: Once signed, keep a copy for your records and provide one to your neighbour.
- The exact location of the fence
- The type and style of the proposed fence
- The total estimated cost, supported by three quotes
- A signature section for both parties
Dispute Resolution: If your neighbour does not agree with your proposal or fails to respond within a reasonable time frame (usually one month), you can seek legal recourse. Your neighbour is only obliged to pay for half a standard style fence construction, which is usually a treated pine timber paling fence. When you want to build a more expensive fence than this, you most certainly can, but only expect your neighbour to contribute for half of the cost of a timber paling fence construction and not the style that you really want - regardless of how much "better" your proposed option is, they simply are not required to pay for it.
1. If a dispute arises, you may apply to the Magistrates Court or the Small Claims Tribunal for an "Order to Fence." This order can compel your neighbour to contribute to the fence costs. There are application costs and time costs required to further this option which must be considered before lodging an application for adjudication.
Avoid Unilateral Actions: It's important not to proceed with the fence construction without your neighbour's consent. If you do, you may not be able to recover their share of the costs, regardless of the fence's necessity or quality.

Practical Tips for a Smooth Process

Navigating dividing fences can be simplified with a few practical strategies:

Meet in Person: Whenever possible, discuss fence matters face-to-face with your neighbour. This helps build a rapport and makes it easier to reach a mutual understanding. Personal meetings can also help defuse potential tensions and foster a cooperative spirit.
Be Considerate: Respect your neighbours preferences and financial situation. Negotiating a middle ground can prevent conflicts and foster good neighbourly relations. Understanding that everyone has different tastes and budget constraints is key to a successful agreement.
Know the Regulations: Familiarise yourself with local council regulations regarding fence height, materials, and styles. These regulations can vary significantly and impact your fence project. Adhering to these rules not only ensures legal compliance but also helps avoid future disputes.
1. Here is a link to the QLD Act https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-2011-025 check your own state for similar legislation that governs this process.
Seek Professional Advice: If you're unsure about any aspect of the fencing project, don't hesitate to seek professional advice. This could be from a surveyor, a fencing contractor, or a lawyer. Their insights can provide clarity and help you make informed decisions.
Keep Records: Maintain thorough records of all communications and agreements with your neighbour. This includes written agreements, emails, and even notes from verbal discussions. These records can be invaluable if disputes arise later on. Take plenty of pictures and measurements before, during and after the fence has been installed to ensure you have adequate visual records to support factual claims.

Understanding the Costs Involved

One of the most common points of contention between neighbours is the cost of constructing or repairing a fence. Understanding the potential expenses and how they are typically shared can help set expectations and facilitate smoother negotiations.

Material Costs: The cost of a fence can vary widely depending on the materials used. Common options include timber, Colorbond, brick, and chain-link. Each material has its own price range and maintenance requirements. For example, timber fences may be less expensive initially but require more maintenance over time, whereas Colorbond fences are more durable but come at a higher upfront cost.
Labour Costs: In addition to materials, the labour involved in constructing or repairing a fence can be significant. Hiring professional contractors ensures the job is done correctly and safely, but it does add to the overall cost. Getting multiple quotes can help you find the best value for your budget.
Additional Features: If you and your neighbour agree on additional features like gates, decorative elements, good neighbour style fence panels (palings on both your and their side of the fence) or special finishes, these will also impact the total cost. It's important to discuss these extras and decide if they are necessary or desirable for both parties.

Common Scenarios and Solutions

Let's explore some common scenarios that home-owners may encounter when dealing with dividing fences and how to handle them effectively:

Disagreement on Fence Type: If you and your neighbour have different preferences for the type of fence, try to find a compromise. For example, you could agree on a style that incorporates elements of both preferences or choose a neutral option that suits both parties.
Financial Constraints: If your neighbour is unable or unwilling to contribute to an expensive fence, consider alternative solutions. You could opt for a more affordable fence or agree to cover a larger portion of the cost yourself if you have specific requirements.
Urgent Repairs: In cases where the existing fence is damaged and poses a safety risk, it's important to act quickly. Communicate the urgency to your neighbour and propose a temporary solution until a permanent fence can be installed.
Boundary Disputes: Sometimes, the exact boundary between properties may be unclear or disputed. In such cases, it may be necessary to hire a surveyor to accurately determine the property lines. Clear boundaries are essential to avoid future conflicts and ensure the fence is placed correctly.
1. If you live in an "older" land subdivision you may need to do an identification survey prior to being able to reinstate and carry out your boundary survey. Ident surveys typically cost between $1800 and $2250 AUD.

Legal Recourse and Mediation

If all attempts to reach an agreement with your neighbour fail, you have the option to seek legal recourse. The Dividing Fences Act provides mechanisms for resolving disputes through formal channels:

Magistrates Court: You can apply to the Magistrates Court for an order requiring your neighbour to contribute to the cost of the fence. The court will consider various factors, including the necessity of the fence and the reasonableness of the proposed solution.
Small Claims Tribunal: For smaller disputes, the Small Claims Tribunal can be a more accessible and cost-effective option. The tribunal can issue binding decisions and orders related to fencing disputes. In QLD we have QCAT to administer fence related matters (see below for more information on this point).
Mediation Services: Before resorting to legal action, consider using mediation services. Mediation involves a neutral third party who helps facilitate discussions and negotiations between you and your neighbour. This approach can often lead to a mutually acceptable resolution without the need for formal proceedings.

QCAT's Role in Dividing Fence Disputes (QLD Only)

Mediation and Resolution: QCAT offers mediation services to help parties reach a mutually agreeable solution without the need for a formal hearing. This can involve discussing the type of fence, cost-sharing arrangements, and other relevant issues.
Determining Contributions: When disputes arise regarding the cost contributions for a dividing fence, QCAT can make legally binding decisions. This includes determining what constitutes a reasonable fence for the area and ensuring that costs are equitably shared between neighbors.
Orders to Fence: If neighbours cannot agree on the need for a fence or its specifications, QCAT can issue an "Order to Fence." This order outlines the requirements for the construction or repair of the fence, including the type of fence, location, and cost distribution.
Dispute Resolution: In cases where one party has erected a fence without the consent of the other, or if there is disagreement about the fence's location or type, QCAT can resolve these disputes. The tribunal considers various factors, including the existing condition of the property, the necessity of the fence, and any agreements or communications between the parties.
Enforcement of Agreements: If an agreement is reached through mediation or a tribunal decision, QCAT ensures that the agreement is followed. The tribunal's decisions are enforceable, meaning that parties must comply with the orders, or they could face legal consequences.
Appeals and Reviews: QCAT also handles appeals and reviews of its own decisions. If a party is dissatisfied with a decision, they may seek a review or appeal, provided they have valid grounds, such as a significant error in the decision-making process.

Maintaining Good Neighbour Relations

While the legal aspects of dividing fences are important, maintaining good relations with your neighbours is equally crucial. Here are some tips to foster positive interactions:

Communicate Openly: Keep the lines of communication open and transparent. Regularly update your neighbour on the progress of any fencing projects and address any concerns promptly.
Be Respectful: Show respect for your neighbour's property and preferences. Avoid making unilateral decisions that could impact their enjoyment of their property. Talk WITH them rather than AT THEM. Its always best to listen more than you speak and to support your points with FACTS rather than with emotions.
Collaborate on Solutions: Approach fencing projects as a collaborative effort. Work together to find solutions that benefit both parties and enhance the overall appearance and functionality of the fence.
Celebrate the Outcome: Once the fence is completed, celebrate the successful project. A friendly gesture, such as a small gathering or a thank-you note, can reinforce positive relations and set the tone for future interactions.

Emotions and housing go hand in hand unfortunately

Rationalise your emotions, become better at critical thinking

Conclusion

Navigating the complexities of dividing fences doesn't have to be stressful. By understanding your rights and obligations under the Dividing Fences Act and approaching the process with clear communication and documentation, you can ensure a fair and smooth experience.

Remember, a well-maintained fence not only delineates property boundaries but also contributes to the overall harmony and aesthetic of the neighbourhood.