Boundary fence dispute. My new neighbours sub divided the property, and has just put a letter in the mail box requesting

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Customer: boundary fence dispute
JA: What steps have been taken so far? Has any paperwork been prepared or filed?
Customer: no, my new neighbours sub divided the property, and has just put a letter in the mail box requesting half of the removal of old fence and half of the new fence going up... i was never formally asked if I wanted the fence removed. except in the letter dated 28/2/20... but the fence was removed so that a retaining wall could be put up in the other property on the 27/2/20
JA: Where is the property located?
Customer: coolbellup, which is under the cockburn council
JA: The Property Lawyer will be able to walk you through that. Anything else you want the Lawyer to know before I connect you?
Customer: The old fence was asbestos but was still in good condition, the only reason they wanted it removed was because the contractors couldn't work with the asbestos.... but our side of the fence was sealed
Answered by John Melis in 4 hours 2 years ago
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John Melis, Expert

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.

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John Melis, Expert

In relation to your important matter the following details will assist you on how to approach the fencing issue you're dealing with the adjoining owner.

The main point is where the adjoining owner is unwilling to act you'll need to fault proceedings in the Magistrate's Court to seek an order that a proper fence is laid on the boundary line.

The Dividing Fences Act 1961 (the Act) combines with local government by-laws to regulate the erection and maintenance of dividing fences in Western Australia. The Act provides a process for sharing costs between neighbours, the determination of boundaries and a mechanism for courts to deal with disputes over dividing fences. It does not apply to retaining walls, fence height restrictions or encroachments.

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.

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 note: A fence which accords with the last two points above is only a sufficient fence where no local law or agreement is made.

If you erect a dividing fence of a higher standard than a sufficient fence without first obtaining the agreement of the adjoining owner, you may only claim half the cost of erecting and maintaining a sufficient fence as defined above.

The Act does not bind the Crown, so where the adjoining land is owned by the Commonwealth, State or local government and is used for public purposes, the Crown is not required to contribute to the costs of erecting or maintaining the fence.

Any agreement, contract or covenant relating to dividing fences between owners of adjoining land overrides the provisions of the Act.

Erecting a new fence between developed blocks

If you want to erect a dividing fence, a written notice must be provided to the neighbouring owner, which sets out:

  • the boundary to be fenced;
  • a proposal for fencing; and
  • the kind of fence proposed to be constructed.

You may also wish to check your Certificate of Title with Landgate to determine any covenants that relate to dividing fences on your property.

If owners of adjoining land are unable to reach an agreement after 21 days, either owner may make an application to the Magistrates Court. In making its order, the court will consider the type of fence typically constructed in the area, how the lands are used and any local laws prescribing the type of fence for your area.

Where the owners agree or a court orders the erection of a fence, the owners must fulfil their obligations within the specified time (or within three months if no time is specified). If an owner does not fulfil their obligations within this time, the other owner may complete the work and recover half the costs from the owner in default by issuing a summons in the Magistrates Court.

Repairing a dividing fence

The Dividing Fences Act 1961 provides for the repair of fences including the realignment and re-erection of a dividing fence. It does not allow for the replacement of a damaged fence where the materials used differ from what was there originally unless that material is no longer available. In this case the materials used should be like-for-like unless an agreement between the parties is reached to use a different type of material.

When a dividing fence is in need of repair, the owners of the adjoining land are each liable to pay half the costs of those repairs even where one or both of the blocks are vacant.

Exceptions to this include 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 a storm, fire, flood, lightning or other natural act. 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.

Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

​Thank you for reaching out today.

You have a legal right to protect your interests in this important situation. I am a user like you in this chat forum to assist in your important question today. Thank you kindly for rating me with 5 stars, which helps me support the community. You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

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