Dividing Fences in a Nutshell

The Dividing Fences Act regulates building and repair of dividing fences in Queensland in certain cases.

In summary:

1. The agreement of your neighbour is NOT required if you propose to build a new fence inside your boundary, ie entirely on your own land and at your expense.

If you build a fence on your land (away from the boundary), the law of "adverse possession" may one day operate to divest ownership in the land between your fence and the true boundary to your neighbour if they subsequently occupy that strip of land for a length of time. 3. Before building a boundary fence:

(a) you should discuss and agree with your neighbour the type of fence, the cost of the fence and the boundary to be fenced before you start work;

(b) the agreement you reached must be in writing if you wish to enforce it later;

(c) if no agreement is reached, you can serve your neighbour with a written "notice to fence" that sets out information about where the fence will be built (the boundary), the kind of fence you want to build, a plan for the fence, including the cost of the fence, how the cost will be paid, and how the work on the fence will be done. Two quotes should accompany the notice;

(d) a notice to fence can be sent by registered post to your neighbour or given to any person over 14 years of age at the neighbour's last place of work or residence.

(e) your neighbour has one month to agree to fence;

(f) if you build a fence without giving your neighbour the notice to fence, the Dividing Fences Act does not apply and you cannot recover any money from your neighbour towards the cost;

(g) if you pay for all of the fence, you do not need your neighbour's permission to build a new fence on the boundary, but it would be prudent to inform your neighbour of your intention to do so;

(h) if you do not wish to pay for all of the fence, but your neighbour does not agree with the notice to fence, you can attempt to mediate the dispute and, if that fails, you can go to the Small Claims Tribunal (for claims less than $7500) or to the Magistrates Court for claims over $7,500;

(i) the Small Claims Tribunal or Magistrates Court can make orders about the type of fence to be built (usually the "standard" for the area), who should construct it, the amount to be paid by each neighbour (usually shared equally for a standard fence), where and when the fence is to be built, and court costs;

(j) a "standard" fence is a fence which is usual for your local area;

(k) you cannot appeal the decision of the Tribunal or Court; and

(l) if the court order is not followed, the person wanting the fence built can build it and then take court action to recover the cost from the neighbour.

4. In relation to a boundary fence that needs repair:

(a) if the repair cost would be more than the cost of a new fence then the rules are the same as building a new fence, however, the cost of demolishing the old fence should be included in the quotes obtained;

(b) if your fence can be repaired and the neighbour refuses to pay towards the cost you must give them written notice to repair with two quotes for the costs of the repairs, and ask them to pay half;

(c) if your neighbour does not respond within one month of your written notice then you can repair the fence and then recover the cost from your neighbour.

(d) if the dividing fence is destroyed by an accident then you can repair the fence immediately without notifying the other owner. The cost of the repairs is shared equally and you can take the neighbour to court if they refuse to pay. Accidents include damage caused by cyclones, floods, lightning, fires, and storms.

(e) if you were responsible for the damage to the fence by your negligence then you will have to pay for the cost of repairing the fence.

5. If the dividing fence is also a pool fence:

(a) The neighbour who is not the pool owner can still be forced to pay towards the cost of the dividing fence, but only to the value of half the cost of a standard fence;

(b) if both you and your neighbour want a dividing fence to act as a pool fence because you both have pools, then the cost would be shared equally; and

(c) if you need to alter the existing fence because of local council laws, then you as the pool owner will have to pay that cost, unless the fence was in need of replacement or repair.

6. In the course of building or repairing a fence under the Act, the person building or repairing the fence can enter the neighbour's property and do the work.

7. Local council laws and building codes usually also apply and should be consulted before any fence is repaired or constructed.

8. State, commonwealth, and local Governments are not bound by the Dividing Fences Act. This means that if you own land next to government or council-owned land, you will usually have to pay the whole cost of the fence.

Inviting your questions or comments.

Michelle Lember
Partner


your team. the LAW team