Fencing Work Who should foot the bill?

This article briefly examines the circumstances where the fencing work costs may be borne by one neighbor only rather than being shared on a 50/50 basis. As with any other case, the list is not meant to be exhaustive and every case turns on its own facts.

Where is the dividing fence?

In order to determine the location of the dividing fence and whether that lies on the common boundary line between the two neighbors’, you need to engage a qualified cadastral surveyor. His/her job is to identify the exact location of the dividing fence in relation to the common boundary line.

Do I need to contribute towards the costs of rebuilding the dividing fence?

The short answer with a few exceptions is yes. Often when the fence is dividing the common boundary between you and your neighbor, the neighbor who seeks to replace or repair the fence requests a contribution from you for the costs of rebuilding/repairing the fence. It is not uncommon that in such circumstance, the costs be shared on a 50/50 basis between you and your neighbour. However, this may not always be the case.

What if we do not agree on the amount of each contribution?

Section 35 of Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 stipulates that, upon an application to Queensland Civil and Administrative Tribunal (QCAT), the QCAT may order, among other things, how the fencing work to be carried out, whether or not that line is on the common boundary of the adjoining land and the way in which contributions for the fencing work are to be apportioned or reapportioned.

Is a dividing fence a retaining wall?

No. A fence is not a retaining wall. This is because a retaining wall is defined as a structure that supports excavated or filled earth. QCAT has no jurisdiction to determine a dispute about a retaining wall per se. However, its order in relation to the fencing work can extend to the preparation of land along or on either side of the common boundary of adjoining lands for the purposes of the dividing fence. A likely example to explain this sort of order is that, where work on a retaining wall is necessary to carry out the fencing work.

What is the likely scenario where I do not need to contribute to the fencing work costs?

Consider a scenario of a pool owner who desires to carry out fencing work to alter or replace a special-purpose fence.

Take-home message

Preserving a good neighborly relationship is always recommended. Disputes can arise for a number of reasons; some could be due to a misunderstanding or an innocent miscommunication, and others can occur due to the lack of knowledge about someone’s rights and responsibilities. The best possible results are likely to be achieved when the door of communication between the neighbors’ remains open and the matter is not litigated. Address an issue now before the issue becomes an issue.

For advice or assistance with all fencing, retaining wall and neighborhood dispute matters contact the Property Law Team at Aylward Game Solicitors today on 1800 217 217

Article Source: Fencing Work

Are You Affected By A Retaining Wall Dispute?

This article aims to briefly discuss the challenges facing residential neighbours when a dispute between two neighbours in relation to a retaining wall arises. Generally, an attempt is made here to simulate the subject with recommendations as to how you may resolve the dispute with your neighbor.

Retaining wall in a nutshell

Retaining walls is not defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA). Instead, the phrase is defined in the Macquarie dictionary to mean a wall built to hold back a mass of earth, for example. Generally, retaining walls involve engineering specifications prior to construction. The tribunals have said, that, unlike fences, it is not usually possible to make both adjoining owners liable for the cost of maintaining, repairing or replacing a retaining wall. This is because usually, a retaining wall is of greater benefit to one of the adjoining owners. For clarity, the retaining wall is not a fence for the purposes of the NDA.

What are the common challenges arising from a retaining wall dispute?

Usually, the dispute surrounding a retaining wall becomes more complex, where the retaining wall is on the common boundary of the adjoining owners’ properties. That is to say, the retaining wall holds back to earth on one of the owner’s property more than the other. The issue becomes further complex whereas one neighbour refuses to repair their portion of the retaining wall which also stands as a dividing fence between the adjoining owners.

Will a tribunal make an order about a retaining wall dispute?

Generally speaking, section 35 of the NDA provides the tribunal jurisdiction to make orders about fencing work. That section is said to be an ancillary power which would enable the tribunal to make orders about retaining walls as an adjunct to an order about fencing work, but not otherwise. More specifically, section 35(1) (f) of the NDA permits a tribunal such as QCAT to decide and order any other work to be carried out that is necessary to carry out the fencing work including a work for a retaining wall.

Do I have any other option other than going to the tribunal?

Sometimes, not always, it may be open to you to consider reaching out to your neighbor in order to resolve your retaining wall dispute amicably. We highly recommend that you seek qualified legal advice in relation to how you may want to conduct a negotiation with your neighbour. This is to avoid compromising your case/rights and to protect your best interest. It is also prudent to do some research prior to discussing the matter with your neighbour. This includes but is not limited to, reviewing the approvals for the development of the retaining wall and to find out the relevant information in relation to the boundary identification of your and your neighbour’s properties.

What if my negotiation with my neighbour fails and I don’t want to go to tribunal either?

There is a free dispute resolution conference that you and your neighbour may avail without the need to have lawyers involved. This will involve a third-party mediator. However, we strongly recommend that prior to going to the conference you seek qualified legal advice so you are fully prepared and informed.

For advice or assistance with all property, commercial and residential matters, contact the Property and Litigation Law Team at Aylward Game Solicitors today on 1800 217 217

Article Source: Retaining Wall Dispute