If you are a property owner, new changes to the Fences Act mean that you and your neighbour have equal responsibility for the dividing fence on your land.
What is the Fences Act?
The Fences Act contains rules about who pays for a dividing fence, the type of fence to be built, notices that neighbours need to give one another and how to resolve disputes that come up when discussing fencing works with your neighbour.
What is a dividing fence?
A dividing fence is a fence built to separate two pieces of adjoining land. It may or may not be located on the common boundary between the pieces of land as this depends on what is agreed between neighbours. The dividing fence might be located off the common boundary if, for example, there is an obstruction or waterway on the common boundary.
It does not include a retaining wall or any wall that is part of a house, garage or other building (although sometimes these types of walls may mean that a dividing fence is not needed, or is not needed for part of the boundary).
What should I do if I want to build a dividing fence or think my dividing fence needs repairing?
Talk to your neighbour informally first about the dividing fence between your properties. If you both agree that work needs to be done, then you might not need to follow the processes in the Fences Act. You might be able to agree on the type of fence, the contractor that you will employ, how the costs of the fencing works will be paid and the placement of the dividing fence. If you are able to come to an agreement like this with your neighbour, then the fencing works can go ahead as agreed.
However, you can not go ahead and build a dividing fence or do repairs on a dividing fence unless you either have your neighbour’s agreement or you follow the processes in the Fences Act. If you do not have your neighbour’s agreement, then before you arrange for any work to be done, you need to give your neighbour a notice that contains information about the work you are proposing (fencing notice).
What is a fencing notice?
A fencing notice is a formal document that sets out a proposal for construction or repair of a dividing fence or other works that need to be done. The regulations under the Fences Act include a pro forma notice which you can use which will cover all the necessary details for your neighbour. The pro forma fencing notices are also available on the Dispute Settlement Centre of Victoria website here.
The fencing notice includes proposals about: the line on which the works should be carried out; the type of works to be carried out; the person to be engaged to undertake the works; an estimate of the cost; and contribution proportions. You can hand the fencing notice to your neighbour personally or send it by post.
Do I have to use a fencing notice?
No, if you and your neighbour have agreed to the fencing works and any other works that need to be done, then a fencing notice is not required. You might agree about the works by signing a quote provided by a fencing contractor, for example. If you agree in this way, then you do not need a fencing notice.
Enforcement of agreements outside of the Fences Act—for example, if you did not give a fencing notice and reached a verbal agreement with your neighbour—would be subject to contract law and is not dealt with by the Fences Act.
What if my neighbour ignores my fencing notice?
If you have given a fencing notice to the person who owns the property next door, but 30 days have passed and they have not responded to the notice, you can proceed with the fencing works without their agreement and later recover their contribution by bringing an action in the Magistrates’ Court of Victoria.
What if I cannot find the person who owns the property next door?
If you do not have an agreement with your neighbour about work that needs to be done for a dividing fence, you need to give your neighbour a fencing notice. To do this, you need to be able to find the person who owns the property next door.
To locate them, you might need to make reasonable inquiries, including asking any tenant of the property next door about the owner’s whereabouts, and asking the local council. After making reasonable inquiries, if you still cannot find the owner of the property next door, you may go ahead with the fencing works. But it is important to know that if you want the owner of the property next door to contribute financially to the fencing works, and you have done the works without giving them a fencing notice or getting their agreement, then you will need a Magistrates’ Court order.
What if my neighbour responds to my fencing notice and does not agree to the works?
If the owner next door does not agree to the proposal in your fencing notice, you cannot proceed. You must negotiate an agreement or wait until the 30 days expires and then initiate an action in the Magistrates’ Court of Victoria. The Magistrates’ Court has the power to determine whether works are needed or not and, if so, what sort of fence should be built, the time within which the works should be carried out, how much each neighbour should contribute, and other matters. You can still negotiate or mediate at any point after the 30 days has expired. The Dispute Settlement Centre of Victoria may be able to assist with mediation.
To avoid the cost and stress of going to court, the Victorian Government has a free dispute resolution service called the Dispute Settlement Centre of Victoria. The Centre offers neighbours who are in dispute, an opportunity to meet together in mediation and with the assistance of mediators, reach an agreement that works for everyone. The service is free, informal and confidential.
You can contact the Dispute Settlement Centre of Victoria for advice on 1300 372 888.
What if my neighbour gives me a fencing notice, but I do not agree with their proposal?
You should talk to your neighbour and explain which parts of the proposal you do not agree with. It may be possible to negotiate an agreement. If you need assistance with your discussions, the Dispute Settlement Centre of Victoria may be able to help. The fencing notice has a section for you to complete if you would like to state in writing the parts of the proposal that you disagree with and suggest alternatives.
The process is the same as if you give a fencing notice and your neighbour disagrees: if you cannot reach agreement after 30 days, either of you may proceed with an action in the Magistrates’ Court of Victoria. The Magistrates’ Court has the power to determine whether works are needed or not and, if so, what sort of fence should be built, the time within which the works should be carried out, how much each neighbour should contribute, and other matters. You can still negotiate or mediate at any point after the 30 days has expired.
What happens if my neighbour and I disagree about the location of the common boundary?
If there is a boundary dispute, the 30-day period after which you can commence court action is suspended until the location of the common boundary is agreed or defined by a licensed surveyor.
If you and your neighbour do not agree about the location of the common boundary, either of you may give a boundary survey notice. This can be given at the same time as, or after, a fencing notice is given. It sets out your intention to have the common boundary defined by a licensed surveyor unless its location can be agreed. There is no prescribed notice.
The owner who receives the boundary survey notice can agree to the location of the common boundary, express their own view about the location of the common boundary, or engage a licensed surveyor to define the common boundary. If, after 30 days, the location of the common boundary has not been agreed or defined by a licensed surveyor, the owner who gave the boundary survey notice may engage a licensed surveyor
If you engage a licensed surveyor, you are responsible for telling your neighbour what the outcome was. In most circumstances, both owners must contribute to the costs of the survey.
Who pays for a dividing fence?
Generally, owners of adjoining land must contribute in equal shares to a dividing fence. The standard of fence that you must contribute to is a ‘sufficient dividing fence’, which will depend on the circumstances.
If you or your neighbour want a dividing fence that is of a higher standard than a sufficient dividing fence—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. Alternatively, if you agree, you can split the cost of the higher standard fence.
What standard of fence do I have to pay for?
A number of factors are taken into account when determining what a sufficient dividing fence is for your properties—for example, the existing dividing fence (if any), the purposes for which you and your neighbour use or intend to use the land, reasonable privacy concerns and the types of fences used in your local area
For some residential properties, a sufficient dividing fence might be a 1.8 metre paling fence. For some rural properties, a sufficient dividing fence might be a wire and post fence.
Also, contributions cover more than just building or repairing the dividing fence. Neighbours are required to contribute in equal proportions to fencing works, and any other associated works to allow the fencing works to take place (called ‘subsidiary works’ in the Fences Act), required for a sufficient dividing fence. Depending on the circumstances, this may include clearing the land, removing the existing dividing fence, having the land surveyed and using temporary barriers.
What if there is a tenant renting my property? Do they have to pay anything?
Most residential or retail tenants do not have to contribute to fencing works, but some other types of tenants (like commercial tenants) may be required to contribute.
If your tenant falls into one of the categories that is covered by the Fences Act and has a term of five or more years still remaining on their lease, they may be required to contribute to the dividing fence. If they have between five and ten years remaining on their lease, they must pay half of your share. If they have more than ten years remaining on their lease, they must pay your full share.
However, a long-term tenant is only liable to pay if you give them particular notices that are required under the Fences Act. The tenant will then be able to participate in negotiations with you and your neighbour and their agreement to the works is required.
What should I do if the fence is damaged and needs to be fixed urgently?
Where a dividing fence is damaged or destroyed and needs to be replaced or repaired urgently, and it is impracticable to give your neighbour a fencing notice, you can undertake the fencing works without giving notice and without otherwise obtaining your neighbour’s agreement (although it would still be advisable to talk to them about what you are going to do).
Whether or not fencing works need to be carried out urgently will depend on the circumstances—for example, the damage might be caused by fire or flood and animals might be escaping or a pool might not be fenced.
If you undertake urgent fencing works and then want your neighbour to contribute to the cost, you will need to give them an urgent fencing notice. This notice includes things like the type of fencing works that were done, the cost and the reason for the urgency. It gives your neighbour an opportunity to have a say. Regulations under the Fences Act contain a pro forma urgent fencing notice which is available here.
Which owner gets to have the flat side of the fence facing into their property?
You and your neighbour can agree for the rails and framing of the fence to face into either of your properties, but the Fences Act contains some rules that apply if you cannot agree. These rules apply to some types of fences and not others, as not all types of fences have rails and framing.
If the dividing fence is between residential land and commercial land, then the rails and framing should face into the residential land. If the dividing fence is between residential or commercial land, and land over which the public has a right of access, then the rails and framing should face into the residential or commercial land.
If these rules do not apply (for example, if the dividing fence is between two residential properties), the rails and framing should go on the same side as the existing dividing fence if there is one. If there is no existing dividing fence, the rails and framing should go on the side least subject to weathering, which will depend on the circumstances. If necessary, a fencing contractor may be able to help you work out which side is the least subject to weathering (but usually the rails and framing will just go on the same side as the existing dividing fence).
What rights do I have if someone is damaging my dividing fence?
If an owner of land, or someone who has entered their land with the owner’s express or implied consent (like a tenant or visitor), deliberately or negligently damages a dividing fence, the owner must pay for any repairs to the dividing fence. However, this does not prevent the owner from recovering payment from the person who caused the damage. For example, if a tenant caused the damage, then this would most likely be a breach of the lease agreement.
You can also apply to the Magistrates’ Court for an order that any party cease an activity or discontinue conduct that is unreasonably damaging, or may unreasonably damage, a dividing fence.
What if my neighbour does not do what they agreed to do?
If you and your neighbour used the processes in the Fences Act and reached agreement on the basis of a fencing notice, there are provisions under the Fences Act to enforce that agreement. If your neighbour does not do what they said they would do, either within the time specified in the agreement or within 3 months of making the agreement, you can carry out the fencing works that are the subject of the agreement and/or recover the money from your neighbour that they agreed to pay.
Also, if the Magistrates’ Court has made an order about your fencing works and your neighbour does not do what they were ordered to do, either within the time specified in the order or within 3 months of the order being made, you can carry out the fencing works that were the subject of the order or recover money that your neighbour was ordered to pay.
Enforcement of agreements outside of the Fences Act—for example, if you did not give a fencing notice and reached a verbal agreement with your neighbour—would be subject to contract law and is not dealt with by the Fences Act.
If my property is next to a public park or Government owned land, does the Government have to contribute to the fencing works?
The amendments to the Fences Act have not changed the position that particular types of Crown land are exempted from contributions under the Fences Act. The Government may choose to contribute in some circumstances, but this is not required by the Fences Act.
The Fences Act also provides that where a municipal council or other body or person owns or manages land for the purposes of a public park or reserve, then they are not considered to be an ‘owner’ under the Fences Act and so do not have to contribute to fencing works for a dividing fence between that land and privately owned land.
The main changes made by the Fences Amendment Act 2014 are set out below.
Combined process for construction and repair of dividing fences
The pre-amendment Fences Act 1968 contained separate processes in relation to construction of a dividing fence (Part I) and maintenance and repair of an existing dividing fence (Part II).
The Fences Amendment Act 2014 has one process for all fencing works and subsidiary works, whether those works involve construction of a new dividing fence or repair of an existing dividing fence. This simplifies the process.
Changes in liability for dividing fences
Under the pre-amendment Fences Act, the responsibility for undertaking fencing works and contributing to dividing fences was on occupiers of land. The Fences Amendment Act shifts this liability to owners of land in most instances, in recognition that a dividing fence is an improvement to the land that most often benefits the owner.
Under the Fences Amendment Act, the owner will generally be the registered proprietor of land or someone who holds an estate in fee simple. Owners corporations are also deemed to be owners in respect of dividing fences between common property in an owners corporation subdivision and external land.
There are some exclusions from the definition of ‘owner’ and, therefore, from fencing responsibilities. For example, municipal councils and others who own or manage land for the purposes of a public park or public reserve are excluded and the Crown exemption from contributing to dividing fences between Crown land and adjoining land remains unchanged.
The pre-amendment Fences Act also contained provisions for land occupied by a tenant, setting out how fencing contributions should be borne between tenant and landlord. With some small amendments, the Fences Amendment Act retains provisions that make long-term tenants of land liable to contribute to fencing works (see Part 4 below).
Contributions between owners and sufficient dividing fence factors
The pre-amendment Fences Act provided that contributions were to be in equal proportions to ‘a fence sufficient for the purposes of both occupiers’. However, little guidance was provided in relation to what is ‘sufficient’.
The Fences Amendment Act clarifies that owners must contribute in equal proportions to a ‘sufficient dividing fence’ and sets out a number of factors to be considered in determining what is a sufficient dividing fence. These factors include: the existing dividing fence, if any; the purposes for which the owners use the adjoining lands or intend for them to be used; reasonable privacy concerns; the types of dividing fences used in the local area; and other factors.
Other than in the agricultural context, the pre-amendment Fences Act did not address the situation where one occupier’s needs for particular standard of dividing fence exceeded the needs of the other occupier. The Fences Amendment Act clarifies that where one owner wants a standard of dividing fence that is greater than a sufficient dividing fence, that owner pays the difference in cost.
Changes in relation to contributions of long-term tenants
As under the pre-amendment Fences Act, long-term tenants were liable to contribute to fencing works in some instances. The Fences Amendment Act maintains this position, but provides for a simpler breakdown of contributions between owner and long-term tenant.
The Fences Amendment Act also makes the process fairer, by providing that in order for a long-term tenant to be required to contribute to the cost of a dividing fence, the long-term tenant must be given notice and allowed to participate in negotiations (and, if necessary, court proceedings) about the dividing fence.
Notice of proposed fencing works even where no contribution is sought
Under the pre-amendment Fences Act, notice was only required where a financial contribution was being sought. If an occupier did not want a financial contribution to the fencing works from their neighbour, they could undertake fencing works unilaterally without giving notice to the adjoining occupier or seeking the adjoining occupier’s agreement.
The Fences Amendment Act provides that an owner must generally give notice to an adjoining owner before undertaking fencing works, unless the owners have already agreed outside of the Fences Act. There are some exceptions if the works are urgent or the adjoining owner cannot be located.
The fencing notice forms the basis for the owners to negotiate and agree about the fencing works.
Process where adjoining owner cannot be located or does not respond
As the Fences Amendment Act requires a fencing notice to be given in most circumstances, it is necessary for the Act to also provide for what happens when an adjoining owner cannot be located or is given a fencing notice but does not respond.
If an owner wishes to undertake fencing works but cannot locate the adjoining owner after making ‘reasonable inquiries’—including asking any person who occupies the property and asking the local council—that owner may undertake the works. If an owner gives a fencing notice but after 30 days the adjoining owner has not responded, the owner wishing to undertake the works may do so.
In either circumstance—where the adjoining owner cannot be located or does not respond—a court order will be required if the owner who undertook the fencing works wishes to seek a contribution from the adjoining owner.
Urgent fencing works
As a fencing notice must be given in most circumstances, it is also necessary to provide for what happens when fencing works need to be undertaken urgently. The Fences Amendment Act is flexible about the circumstances that may necessitate urgent fencing works, but if fencing works need to be undertaken urgently and it is impracticable to give a fencing notice, an owner may undertake the works without giving notice.
If an owner who has undertaken urgent fencing works then wishes to seek a financial contribution from the adjoining owner, they must give an urgent fencing notice, setting out matters including the nature of the works that were undertaken, how much they cost, the amount being sought, and the reason for the urgency. This provides the adjoining owner with an opportunity to be involved.
Greater powers for the Magistrates’ Court
The Fences Amendment Act gives the Magistrates’ Court the power to make a broader range of orders about anything that may be in dispute in a fencing matter.
Some of the new matters about which the Court may make orders include: the time within which the fencing works should be carried out; the person to carry out the works; the line that is the common boundary; that any party cease or discontinue conduct that is unreasonably damaging (or may unreasonably damage) a dividing fence.
The Fences Amendment Act sets out a process for owners to resolve boundary disputes that arise in the context of fencing works.The process is intended to ensure that only one surveyor needs to be engaged in respect of a boundary dispute and to resolve disputes about payment of costs of the survey.
Either at the same time as, or after, a fencing notice is given, one owner (Owner A) may give the other owner (Owner B) a ‘boundary survey notice’ to the effect that if the common boundary is not agreed, Owner A intends to have the boundary surveyed.
In response to receiving the boundary survey notice, Owner B may agree to Owner A’s view about the location of the common boundary, or
express their own view about the location of the common boundary, or engage a licensed surveyor to define the common boundary.
If, after 30 days from the date the boundary survey notice was given, the owners have not agreed about the location of the common boundary and Owner B has not engaged a licensed surveyor to define the common boundary, Owner A may themselves engage a licensed surveyor to define the common boundary.
Costs of the survey are generally to be paid equally by the owners, but there is an exception to this. Where Owner B in the above example receives a boundary survey notice and expresses a view about the location of the common boundary, but Owner A does not agree with this and decides to engage a licensed surveyor, but the survey shows that the location of the common boundary was in the same place as Owner B thought it was, Owner B does not have to contribute to the cost of the survey. Owner A bears the full cost in recognition that only Owner A considered a survey to be necessary.
Adverse possession law allows a person to claim title to someone else’s land if they have continuously occupied that land for more than 15 years without the owner’s permission. After 15 years, the original owner loses their right to bring an action to recover their land and their title to the land is extinguished.
In Victoria, adverse possession is covered by the Limitation of Actions Act 1958, the Transfer of Land Act 1958 and the common law.
An adverse possession claim may come up in the context of a fencing dispute if a dividing fence has been in the wrong place for more than 15 years. The owner who has gained a strip of land because of the misplaced fence can bring a claim to that land in adverse possession.
The Fences Amendment Act clarifies that the Magistrates’ Court has the power to hear and determine adverse possession claims that arise in the context of fencing disputes, but otherwise the law applying to the adverse possession claim remains the same.
Give and take fences
The Fences Amendment Act preserves the option for adjoining owners to agree to locate the dividing fence off the common boundary if a waterway makes it impracticable to locate the dividing fence on the common boundary. The main change is that this is extended to other obstructions, whether natural or manmade.
The Act provides that arrangements about give and take fences do not affect title to or possession of land, and do not give rise to adverse possession.
Placement of rails and framing
The pre-amendment Fences Act did not deal with the side on which rails and framing on a fence, such as a paling fence, should be placed. The Fences Amendment Act 2014 contains general rules about the side on which rails and framing should be placed for dividing fences between residential and commercial land, and between residential or commercial land and land over which the public has access.
If these provisions do not apply, the Act provides that the rails and framing should be placed on the same side as the previous dividing fence (if any). In all other cases, the rails and framing should be placed on the side least subject to weathering.
These provisions do not prevent owners agreeing otherwise about the side on which rails and framing on their dividing fence should be placed. The provisions do not apply to all types of fences, as some do not have rails and framing.