When it comes to fence disputes between neighbours, your initial thought is: what are my rights?
As a consequence of the continual growth in housing density in South Australia, there has been a steady increase in fencing disputes.
Although there is no general obligation to fence land or to repair an existing fence, the Fences Act 1975 (SA) regulates the erection, replacement, maintenance and repair of fences in South Australia. The Fences Act, however, does not apply to land:
- Comprising a single parcel of more than one hectare in area
- In a public road or road reserve
- Crown or council land used for controlling access to a road or proposed road form land abutting the road
- Crown or council land used for drainage
If you have found yourself embroiled a fencing dispute, there are a number of factors that you must consider.
Who owns the fence?
A fence is a joint asset of both adjoining owners – regardless of who paid for it.
Do we have to go to court?
A fence dispute can be resolved between the two neighbours, without the intervention of the court. If an agreement can be reached, it is wise to make that agreement in writing with the signatures of each neighbour.
Dispute resolution process:
While the dispute is in its infancy, you should try and resolve the issue with your neighbour directly. However, if you have tried having discussions with limited success, mediation is available. Mediation is cheaper and more efficient alternative to court proceedings.
Finally, if the above steps fail, the following Fences Act Procedure should be followed:
- If you are erecting a fence, you must serve your neighbour with Form 1 – Notice of Intention to erect a fence.
- If you are wanting to repair, replace or carry out maintenance work on a fence, you must serve your neighbour with Form 2 – Notice of intention to perform replacement, repair or maintenance.
Service of the Fences Act Forms:
Both Form 1 & 2 must be legally served on the neighbour by either handing them to the owner personally or by sending them by Registered Post. Leaving it in their mailbox, putting it under their door or sending it by ordinary post does not count, even if the neighbour actually gets it.
Your neighbour may object to your notice or provide a counter proposal. You will be notified of this by being served a Form 3 – Cross Notice.
If the fence dispute remains unresolved following the exchange of the above forms, either neighbour can apply to the local Magistrates Court for a resolution. All forms, evidence and arguments will be presented to the Magistrate for their consideration. The Court will make a deliberation and will normally order the loser to pay the winner’s costs.
You cannot access your neighbour’s land without legal authority. The simplest way is to ask for their permission. In the event that they say no, despite following the Fences Act procedure or having a court order, you can obtain a legal right to end their land with the vehicles or equipment needed for the work. You need to give 2 days written notice. You must legally serve this notice as described above.
Sharing the Costs:
Whoever orders the fence is responsible to pay the contractor or supplier in full. This person then collects the agreed contribution from their neighbour.
Links to the Fences Act Forms:
If you require any further clarification on a fence dispute, please do not hesitate to contact our office