You can recover costs when the current owner of the adjoining land meets one or more of three criteria.
The owner of the adjoining vacant land must have either:
- completed a substantial building or structure on the land;
- occupied or occupies a building or structure on the land; or
- permitted or permits some other person to lawfully occupy a building or structure on the land.
If any of the above conditions are satisfied, you may give the other owner a notice claiming half the value of the fence as estimated at the date of the claim.
While it is not a requirement under the Act to notify the owner of the adjoining vacant land of your intention to construct a sufficient fence, clearly it will help engender good relations with the adjoining owner (your possible future neighbour) to do so.
This will give you and the adjoining owner an opportunity to discuss the type of fence to be constructed and avoid the adjoining owner later on (i.e. after you have constructed a building or structure on the vacant land) from disputing the need for a fence, the type of fence constructed, the dividing line of the fence, or its cost, and refusing to pay half of the cost. See further below information about this.
Step one: Discuss your proposed fence with the adjoining owner
If you can, approach the owner of the adjoining land with your proposal. Provide details of the type of fence you wish to construct, where it will be placed and a proposed cost. While the Act does not specify the requirements for obtaining quotes, having quotes and a clear understanding of the costs can assist in obtaining the adjoining owner’s support for your proposed fence and avoid future disputes.
While there is no requirement for the adjoining owner to give written approval of your proposed fence, agreements in writing and signed by both parties clears any ambiguity and clarifies any point of difference. It can also be used later to show what has been agreed if the matter comes before the courts.
Step two: Construct the fence and claim payment
If you are unable to come to an agreement with the owner of the vacant land, you may still erect a sufficient fence. The owner of the vacant land will be required to contribute half of the cost incurred in erecting the sufficient fence once they have completed a substantial building or structure on the property, occupy a building or structure on the land, or permit some other person to occupy a building or structure on the land. See repair process section.
If you proceed to construct a sufficient fence without the agreement of the owner of the adjoining land, you must give a notice to that owner claiming the payment of half of the amount of the value of the fence as estimated at the date of the claim. The notice must be in writing, signed and delivered in person or by registered post.
The neighbour has the right to dispute your claim based on:
- the need for the fence;
- the dividing fence being undesirable;
- the need for a fence of that particular type; or
- the value of the fence on the claim.
If the neighbour objects to paying the costs based on a reason listed above, they have one month from the date the claim was received to provide a written response to the owner.
Dividing fences sample letters for notification
Step three: Apply to the Court
If the adjoining owner has disputed the claim and failed to pay, you can apply for an order to be made through the Magistrates Court. The court can determine the amount, if any, to be paid and the period within which that amount is to be paid.
