Fencing law what is it?

[Tiger]

We have a new neighbour, they've been there about 12 months. Anyway they have approached us about a new fence. The issues for us are that the previous owners of the new neighbour's property had ivy along most of the fence causing the deterioration of the fence, secondly they have a tree right on the boundary of our properties which we want removed before we agree on the fence, they want to keep the tree and build the fence slightly around it which impinges on our property. Thirdly they want a 6 foot fence, we don't, I know that we don't have to pay for anymore than a 5 and half foot fence. They have threatened mediation. Council is being vague regarding our rights. Anyone know where we stand and whether we're being unreasonable?

[Sturdee]

We have a new neighbour, they've been there about 12 months. Anyway they have approached us about a new fence. The issues for us are that the previous owners of the new neighbour's property had ivy along most of the fence causing the deterioration of the fence, secondly they have a tree right on the boundary of our properties which we want removed before we agree on the fence, they want to keep the tree and build the fence slightly around it which impinges on our property. Thirdly they want a 6 foot fence, we don't, I know that we don't have to pay for anymore than a 5 and half foot fence. They have threatened mediation. Council is being vague regarding our rights. Anyone know where we stand and whether we're being unreasonable?

Dividing fences has nothing to do with the council (in fact I doubt if they know anything about fencing) but it is governed by the Fencing act.

Get a copy of the act to be sure but basically both owners are required to pay for the cost of the fence and any subsequent repairs/replacements.

That the deterioration was mainly caused by the ivy is immaterial as you should have objected to it at the time (technically you can not grow anything or hang anything on it without the other side permission, which is too late now) and is not the current owner's problem.

The tree will have to be removed if the replacement fence will impede on your property. You do not have to give permission, if you do they will gain ownership of that bit in 15 years time by adverse possession and could stuff up your land's saleability.

You could allow it and avoid adverse possession by having the details properly recorded by a solicitor and this may be a way to get your neighbour to pay the whole cost of the fence.

You are only required to pay the cost of a standard fence in your area, anything more (if you agree) is not your expense.

Any disagreements are handled by the Magistrate court, and if the fence is replaced before you give consent you are not required to contribute.

Finally, all this is about rights but you have to negotiate in good faith with your neighbour for you have to live with your neighbour. Life would be hell if you allowed it to get out of hand.

Peter.

[opelblues]

as i understand the law,i may be incorrect (Local Law - Shire Councel) for the parties to build the fence on a common boundary, it required to be of the same type and standard and hight as the common fences in the local block, it is only get messy when both or one party want a different fence from the common, now since the joining of shires in 2008 this area of local law a gotten fuzzi - speek to a local law officer in the local councel - they work for you The "rate payer". different areas of the local law have changed so this mite be wrong or out of date.

[Sturdee]

THe beauty of our one country is that different states have different laws. In Vic it is not a council matter but governed by state law, and any disputes are handled by the Magistrate Court.

Peter.

[Pheonix]

I always thought it was the cost was equally shared by the two property owners ie half and half:2tsup:

[bluegum30]

best to find out about the law concerning fencing ,dividing fences with your neighbour"s in your state,council etc.you could use the tree as a starting point.two points of view have to be accomedated.lloyd.:U

[Sparhawk]

Have a look here http://www.casey.vic.gov.au/fences/article.asp?Item=1685 for some more details relevant near to your area.

[Tiger]

Thanks guys for your thoughts on this. Originally I did approach the Council who gave a rambling non-comittal response that trees are generally protected and require permits to cut down - therefore not much help.

Sturdee, you are geographically close to me and you obviously know your facts. I have 2 more questions.

1) If we cannot reach agreement regarding the tree and the neighbours go ahead and put up a fence, how do you guarantee that they don't encroach on my property.

2) Sturdee, regarding your point about growing trees etc over a neighbour's side of the fence. The other neighbour has planted a number of small trees/shrubs along the fence line, some about 3 metres high that reach over our side of the fence, naturally they drop leaves etc which we clean up on a regular basis, where do we stand with that? Is there a law about how close you can plant anything next to the fence?

[Sturdee]

Thanks guys for your thoughts on this. Originally I did approach the Council who gave a rambling non-comittal response that trees are generally protected and require permits to cut down - therefore not much help.

Sturdee, you are geographically close to me and you obviously know your facts. I have 2 more questions.

1) If we cannot reach agreement regarding the tree and the neighbours go ahead and put up a fence, how do you guarantee that they don't encroach on my property.

2) Sturdee, regarding your point about growing trees etc over a neighbour's side of the fence. The other neighbour has planted a number of small trees/shrubs along the fence line, some about 3 metres high that reach over our side of the fence, naturally they drop leaves etc which we clean up on a regular basis, where do we stand with that? Is there a law about how close you can plant anything next to the fence?

A long time ago I used to work for a builder and we had lots of problems with neighbours after we purchased a block of land regarding the fences, been in and out of the Magistrate court a number of times for this. We also had a neighbour from hell who replaced our dividing fence without going through the correct procedure and then sued us for a share of the costs. Needless to say he lost and also he had to pay my legal costs which included an expensive city barrister.:D ( The benefit of having good legal friends who acted for nothing if I lost but charged full fees when he won. :2tsup: )


In reply to 1. You can not stop the fencing contractor reasonable access to replace the fence but the contractor must make good any damage. In sofar as the fence encroaching on your property you should see that but maybe a check survey is needed as proof. Be aware that the current fence may already be partly out place and in the wrong spot . Again a check survey is the only sure way unless you check the measurements against your title details. But you would already have done that when you purchased the property. You did, didn't you.

In regards to 2. Anything that reaches over the fence linme and encroaches on you property you can cut down, or make the neighbour cut down, but you cannot legally retain what you removed and have to give it back to your neighbour. Obviously common sense says that you dispose of such prunings and leaves but technically you must toss it back over the fence. My said neighbour from hell used to toss it over the fence back to us.


But you have a smaller block then mine, so whilst it was easy to ignore my back neighbour it is not so easy for you so negotiation is better.


Peter.

[Tiger]

Thanks, Peter, we bought at auction, can't recall that we did a check survey but I'll remember that for next time.

Didn't know that we could make the neighbour cut down anything that grows over our side, but what if they refuse???

[Waldo]

Used to have a similar neighbour from hell as Sturdee. Hell is too fine a word to be used. Went so far as in one instance of trimming a tree that grew over the fence line, but they didn't stop there and cut the tree back to ground level. It was no more than 4' high and extremely rare :~ - it was the straw that broke the camels back and we moved sometime later.

I could go on.

Fence disputes would have to be up there as number one. A current neighbour comes in with little issues, but it's better to be neighbourly and have a beer with them and loan them things like ladders than end up in a biffo - if possible.

[rotten_66]

Bottom line, you have to live next door to the person. Try to be as nice/polite as you can, as Waldo says, but know your rights.

[Sturdee]

Didn't know that we could make the neighbour cut down anything that grows over our side, but what if they refuse???

If it is small do it yourself and put it over the fence, gently ofcourse so you don't damage anything.


If it is major, and discussions have no result, contact the clerk of the magistrate court for the procedure, as it becomes a neighbourhood dispute.

Peter.