Boundary and dividing fences disputes are one of the common community concerns between neighbour. However, surprisingly, most people do not know how to deal with such issues.
Legislation in Western Australia
Dividing fences are defined by law under various State and Territory legislation and are different between each State and Territory.
In Western Australia WA, the applicable legislation for boundary or dividing fences is the Dividing Fences Act 1961 (WA) (the Act). The Act includes a process for sharing costs between neighbours, the determination of boundaries and a mechanism for courts to deal with disputes over dividing fences.
It is also important to note that the Act only governs boundary or dividing fences. Disputes arising out of retaining walls, fence height restrictions or encroachments are not covered by the Act.
What is a dividing fence?
According to the Act,a dividing fence is a ‘sufficient fence’ that separates the land of different owners, whether on the common boundary of adjoining lands or in a line other than the common boundary.
So, what is meant by a ‘sufficient fence’? A ‘sufficient fence’ is:
- a fence prescribed by a local government local law as the minimum standard of fencing in that locality;
- a fence of any standard agreed upon by adjoining owners provided that it does not fall below the standard prescribed by the relevant local government law;
- a sufficient fence that is ordinarily capable of resisting the trespass of cattle and sheep; or
- a fence determined by a magistrate in a magistrates’ court to be a sufficient fence.
Please also note that a fence which corresponds with the last two points mentioned above is only a sufficient fence where no local law or agreement is made.
Repairing a dividing fence
According to the Act, the repair of fences including the realignment and re-erection of a dividing fence. The materials used for repairing a damaged fence must not be different from what was there originally, unless the originally used materials are no longer available.
Who pays for the cost?
Repairing costs for a dividing fence might cost you thousands of dollars as the costs may also include labour cost, equipment hires and materials. Owners of adjoining land have equal proportions to join in or contribute in repairing the fence. This applies to both developed and vacant land.
Owners of adjoining land are each liable to pay half of the repairing costs even if one or both blocks are vacant.
If you wish to repair your dividing fence, you should give the adjoining owner a notice describing the extent of repairs to be made, and state that you are prepared to:
- repair the fence and pay half the cost if the other owner will also pay half the cost;
- permit the other owner to repair the fence and you will pay half the cost; or
- pay half the cost of having the fence repaired by a third party.
However, there are also some exceptions accords the situations where:
- the dividing fence was built partly by one owner and partly by the other. In this case each owner is responsible to repair the part of the fence they had built;
- the dividing fence is damaged by natural disaster such as a storm, fire, flood, lightning etc. In this case either owner may repair the fence without notice and recover half the costs of the repair from the other owner; or
- the dividing fence is damaged by fire or a falling tree or branch as a result of one owner’s actions. In this case the owner whose neglect caused the damage must repair the fence.
If you happen to face a dividing fence dispute with your neighbour, please do not hesitate to talk to us at ☎️(08) 6161 0243 or 📧 firstname.lastname@example.org for an obligation-free consultation.