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
