Inheriting a Dividing Fence Dispute

Inheriting a Dividing Fence Dispute

Dividing fence disputes can occasionally be awkward to navigate. So what do you do when you purchase a property only to find that you have inherited a pre-existing dispute with a neighbour over an unpaid contribution for a dividing fence?

People who find themselves in this position will often feel that had they known that there was an unpaid fencing contribution dispute, that they would have factored that amount into their offer price and by extension, that the previous owner ought to be held responsible for the unpaid contribution.

The short answer is that your neighbour can require you to contribute half of the cost of the fence provided that they have not already claimed half of the cost from a previous owner. As such, you would first need to check with the previous owner who you purchased from as to whether they in fact did previously contribute an agreed proportion (normally 50%) of the cost of the fence. If they did, then obviously you would not have to pay the neighbour anything. However, if they did not, you are likely able to sue them (the previous owner) for whatever amount you have to pay to the neighbour if they failed to disclose the unpaid contribution amount to you in the sale and purchase agreement (including any annexures to the main document) or advertising material.

Further, if your neighbour erected a fence of a higher standard than a ‘sufficient fence’ (which is defined by the local government) then unless you agreed to pay the higher cost claimed, you would only have to pay half the cost of a sufficient fence. The additional cost for the higher standard of fence would be borne by the neighbour.

In any event, if you wish to dispute the amount claimed then pursuant to s13 of the Dividing Fences Act 1961 you have one month in which to do so from the date of the claim. Both the claim, and any notice of dispute, must be in writing and signed by the person giving the notice. If you dispute the claim (for example on the basis of not agreeing the value of the fence) then the neighbour may elect to proceed to court for the claim to be determined there. If that were to happen you could potentially consider adding the previous owner/s to that action and seek that they ultimately pay the amount owing.

Finally, if you have read this far and think that you need some practical advice or assistance in relation to your situation, then now is probably the time to get in touch.

Austral Legal can help and we offer an initial discounted 30-minute SmartMove appointment for $80 by phone or in person at our office.

Bookings can be made online through our website or simply by phoning our office on 08 9745 9550.

Once we have a handle on what is required, we may well be able to offer a fixed fee for any further legal services, giving you cost certainty from the start.

Austral Legal. Practical advice.