How To Resolve Dividing Fence Dispute with the Neighbour

If you were part of a dispute with your neighbours, the chances mostly are that the problem was related to a dividing fence. Dividing fence disputes are a common civil law dispute, and people are usually involved in this dispute once in their lifetime. Some people hire lawyers to fight for them when such disputes occur.

But before hiring fence dispute lawyers, you need to ensure that they are from a reputed firm. You also need to know about the procedures before you go through a dividing fence dispute. In this guide, you will learn how to resolve any fencing dispute.

What is a Dividing Fence?

West Australia’s main applicable legislation for dividing fence disputes is the Dividing Fences Act 1961. As per the act, adjoining land that various owners separate needs to be divided with an adequate fence or a dividing fence.

A sufficient fence is considered as follows:

• It has to be prescribed by the local law as an adequate fence for part of the local government district in which the boundary or dividing fence is
• It needs to fit the description and quality that is agreed upon by the concerned parties. As stated in the first point, it should not fail to comply with any local law.
• It needs to be ordinarily capable of resisting any trespass of cattle and sheep.
• The fence can be called a sufficient fence by the court pursuant to this form of act.
• The act states that every owner of adjoining land needs to be equally contributed to the cost of a sufficient fence. In today’s times, as illegal substances like asbestos are not used, colour-bound fences are the preferred types that are usually erected by boundaries.

You also need to know that the Dividing Fences Act can govern any boundary or dividing fences. Disputes arising out of fences or boundaries that are not dividing fences, like retaining walls usually put on the side of two adjoining lands, will not be covered by this act.

How Do You Repair a Dividing Fence?

Most of the time, the issue is not only the existence of a dividing fence but a fence that can no longer satisfy or meet the relevant criteria for a sufficient fence. This may also include repairing a badly damaged fence or a fence that needs to be realigned as it was not properly erected or encroaching into another individual’s property.

In such situations, it is recommended that an inspector/surveyor is hired to evaluate if the dividing fence needs to be repaired or realigned. This is to ensure that the specific act applies.

How to Make a Dividing Fence Claim?

Before you look to make a dividing fences claim under this act, you need to issue and serve a notice on the nearby landowner that includes the following:

• The boundary or line that needs to be fenced
• A proposal for fencing a common boundary or line
• The type of fence that has to be constructed on the boundary or line.

If after, around 21 days after the notice is sent, the adjoining owners cannot agree with each other on any of the above; the owner needs to make a dividing fences application at the local magistrate court. They can also request the court to intervene in this matter.

What Might Happen if There is an Agreement?

If the adjoining owners or neighbours can come to an agreement, owners need to ensure that it is enforceable, in a written format and properly executed. If that happens, the adjoining owners need to follow the rules written in the agreement.

If an owner is unable to follow their part of the agreement by the given time or not under a time period as given in the agreement, a Dividing Fences Application must be made to the Magistrates Court to enforce the agreement.

Legal Representation and the Costs

Compared to a residential tenancy dispute or other minor case claims where legal representation is usually not allowed, and legal costs cannot be claimed, things in dividing fence disputes are different. The owners involved in a dividing fence dispute are allowed to have legal representation. Read about – Things To Keep In Mind Before Hiring a Fence Disputes Lawyer.

When anyone is able to make their claim successfully, the court will have the power to ensure cost orders against the failing party. This is why it is essential that the notices that are referred to above are taken seriously. When an individual fails to do so, they not only have to contribute to the cost of the dividing fence but also need the legal costs of the other owner.

Who Pays for the Damaged Fences?

Most of us know that the repair costs for a dividing fence are usually shared between the neighbours. But if the damage was inflicted by one of the relevant parties and if the damage occurred naturally and the other party does not believe in repairs, there may be problems.

Usually, if a neighbour is responsible for the damage on the dividing fence, they need to pay for the entire repair bill. But before hiring dividing fence dispute lawyers, you need to learn about the following:

• If the responsible neighbour does not initiate the repairs on their own, the other neighbour can discuss the problem and request a repair.
• If any informal agreement is not reached, a fencing notice can be issued as per the specific state legislation.
• If the notice gets ignored, the matter might be taken for mediation or court intervention.

If the damage was caused due to means beyond the neighbour’s control, the cost and responsibility for repairs need to be equally divided. If one of the neighbours refuses to cooperate or does not pay for the repairs, the other neighbour can proceed with the repairs after the notice has been issued. They can later recover their contribution to the repair via legal means.

Contact Property Lawyers Perth WA

If you are in the middle of a fencing dispute with your neighbour and need legal help, you can take the help of Property lawyers Perth. They are a reputed law firm that can provide you with the best lawyers for assistance or advice in these cases.