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June 5, 2010

Fence wars – managing disputes over boundary fences

By BEN POWER

Broadcaster Richard Glover recently wrote a column for the Sydney Morning Herald outlining to his son on his 18th birthday some lessons he’d learnt about life. One of them related to neighbours: “Never get into a fight with your neighbours. Apologise. Make peace. Buy them a case of beer… anything.”

It’s excellent advice. But what happens if your neighbour suddenly announces he wants to build a brand new fence on the boundary you share and he wants you to pay half?

You’re adamant the existing fence is fine.

It’s going to be hard not to get angry and turn it into a dispute, isn’t it?

According to Peggy Kadis, executive director of the Southern Community Justice Centre, which operates the Community Mediation Services in South Australia, boundaries and retaining walls caused the highest number of neighbourhood disputes in the 2008 to 2009 period.

“It’s more than double our other high onestrees and plants, behaviour and noise,” she says. “It’s by far the highest.”

Fence disputes are so infamous they became the subject of a play, The Great Divide, which tells of the dramas created when a young Greek couple move in and want to replace a dividing fence with a huge brick wall.

Roger Batrouney

Roger Batrouney

“They (fence disputes) create a disturbance out of proportion to the actual issues,” says Roger Batrouney, a local government and planning specialist at law firm Slater & Gordon.

“People are fighting about their castles, aren’t they? Someone’s trying to breach the ramparts of the castle    that’s how they see it sometimes.”

Batrouney says that boundary fence disputes are “30 per cent law and 70 per cent emotion”. So while it’s good to have your head around the law, it’s often people’s attitude that needs to change to ensure sensible resolutions. Is it really worth having a toxic relationship with your neighbour over a fence and a few thousand dollars?

WHAT THE LAW SAYS

Boundary, or dividing, fences are defined by law under various state legislation. There are differences between each state, but the laws are broadly similar. It’s worth consulting a solicitor for the exact legal requirements in each state.

In New South Wales, for example, under the Dividing Fences Act 1991, a dividing fence is defined as a fence that separates the lands of adjoining owners. It may be of any material, a ditch, an embankment or a vegetative barrier such as a hedge. It isn’t a wall of a building, nor is it a retaining wall – except if it’s used as a foundation or support for the fence. The Act defines a “sufficient” dividing fence as one that “adequately separates the properties. For example, a paling fence in a residential area, or a wire and steel star post fence in a rural area.”

In most states adjoining owners must share the cost of the fence. That obligation only occurs if the fence is inadequate or there is no fence.

There are exceptions:

  • if one neighbour wants a higher-standard fence than required, they must pay the additional cost; or
  • if one neighbour damages the fence, they have to pay for the entire costs of restoring it.

In most states the fencing Acts don’t apply to property boundaries adjoining unoc cu pied Crown land. “The law isn’t perfect but it does have a significant role in having these disputes resolved without people belting each other to death in the streets,” Batrouney says.

CASE STUDY
Glenn Thexton

Glenn Thexton

When Emotions Take Over
Many fencing disputes have basis in the law, but become so bitter and emotional that legal issues can become irrelevant. Glenn Thexton, a Melbourne-based lawyer at Thexton Lawyers which specialises in fencing disputes, recently ran a case in Packenham, Victoria, for a client who wanted to build an $8000 Colorbond fence along his border with a neighbour, replacing an existing wire fence. He also wanted the fence to be higher than the standard fence.
Thexton says his client “wanted to build a fortress – a Colorbond fence was his personal preference. He had put up a Colorbond fence at the back and to the side. He was completing all three sides to the property.
“The client approached the neighbour first and offered to accept half the price of a standard timber fence, costing about $6000, and presented the neighbour with a quotation.The neighbour rejected his offer and argued the existing wire fence was suitable and fit for the purpose in dividing the prop erties. There was also no requirement for a fence any better than a wire fence, he said.
The client then, through Thexton, served a notice to fence to the objecting neighbour. In the letter he said he was seeking half the price of a timber fence, or around $3000.
“He chose not to specify the half price of payment for the Colorbond fence in an attempt to be reasonable,” Thexton says.
The neighbour again refused to pay and Thexton issued an application to the Magistrates Court pursuant to the Fence Act. The application again was for half the cost of the timber fence.
The neighbour objecting to the new fence then engaged his own firm of solicitors and correspondence traveled back and forth. It was eventually listed for a final court hearing.”
Prior to the final court hearing words were had and letters were sent between respective solicitors,” Thexton says.”We argued that the Colorbond fence not only served as a boundary fence but increased the value of the respondent’s property because it was a better quality of fence, therefore they should pay for it.”The matter was headed for court. That was despite one interesting fact: Thexton’s client had little legal grounds to claim costs for the fence. The law requires a neighbour to pay half of a new fence only if there is no fence there or it’s inadequate. The existing wire fence was clearly adequate.”The existing fence wasn’t in disrepair,” Thexton says.Thexton says his initial advice to a client in this situation would be not to pursue the matter and to pay for the whole fence them selves. But by this stage emotions had taken over and his client wanted to pursue the matter anyway.The matter was settled just before it was due to be heard in court.The neighbour agreed to contribute $2000 to the fence. It was the amount he would have had to spend paying his lawyers to appear in court. But what about the neighbours’ relationship?”It’s acrimonious,” Thexton says.

APPROACHING YOUR NEIGHBOUR

So what happens if you or your neighbour decide to build a new boundary fence?

According to most state laws you need to serve the neighbour with a ‘notice to fence’, but most lawyers recommend informally approaching the neighbour before that.

“The desired approach is not to follow the law strictly at first instance,” says Glenn Thexton, a Melbourne-based lawyer with Thexton Lawyers which specialises in fencing disputes.

“Try to have a discussion with your neighbour with a view to being a long-term neighbour and avoiding conflict.”

He says another good idea is to present the neighbour with a fence quotation and give them an opportunity to get their own quote.

Tim O’Dwyer, principal of Brisbane-based law firm O’Dwyer & Bradley, agrees this is the best first step.

“The positive approach is to talk to the person who owns the property about either a new fence or a fence repair or upgrade,” he says. “Try and get a phone number and be positive and friendly and be reasonable in what you’re proposing. If someone is asking you to contribute to a fence, be reasonable and be realistic. If it’s an investment property there are going to be tax advantages for what you spend on the fence anyhow.”

O’Dwyer says fences are often things that investors don’t like spending money on.

“Landlords tend to see it as money down the drain,” he says, “but a property fully and adequately fenced is more rentable and a more attractive proposition for any prospective tenant, particularly a tenant with young children and pets you’re happy for them to have in the yard but not in the house.”

IF YOUR NEIGHBOUR SAYS ‘NO’

The problem is a lot of neighbours will say no to an initial approach which can trigger a dispute.

According to the Department of Justice in Victoria, disputes arise over a variety of issues:

  • one neighbour feels the current fence is adequate, or just needs repair;
  • one neighbour blames the other for the need to replace the fence;
  • both neighbours agree they need a new fence, but one or both can’t afford it at present;
  • neighbours disagree about the position of the title boundary;
  • the neighbours want fences of a different height;
  • the neighbours disagree about whether the front end should ‘rake’ or taper down for visibility;
  • one neighbour wants to use a contractor of dubious qualifications, or build the fence themselves;
  • one neighbour fears the weight of attach ments like trellises may damage the fence.

The list is seemingly endless.

According to Richard Berckelman, who runs fencing contractor All Day Fencing, the most common disputes he sees are over location, type and cost of the fence, and the fence height.

Carl Weiss, a fence builder based in the western Brisbane suburb of Brookfield, says: “There are a lot of arguments about neighbours who want different kinds of fences, where the boundary is, if they’re getting a paling fence who gets the paling side and who gets the non-paling side?”

Slater & Gordon’s Batrouney says one of the most common disputes is over where the fence goes.

He says 10 per cent of the time the fence is exactly on the title boundary, but in most other cases it’s not.

“Often because of the passage of time, or because of fencing contractors, the fence isn’t actually on the title boundary,” he says.

“Builders aren’t surveyors and near enough is often good enough.”

He says there’s wiggle room in the law for some discrepancy.

“Generally it doesn’t make much difference. An inch or two? Big deal. But some people get very excited about it. Some people will go to quite an amount of cost to get the fence on the boundary.”

He says establishing the title boundary involves a surveyor to establish where it is and its relation to the fence.

Another big issue is aesthetics. What happens if the neighbour wants to put up a large fence you deem ugly? Batrouney says you can oppose it on those grounds. But the neighbour has the option of building an ugly fence on his side of the property.

If a neighbour rejects an informal approach, they can then be served a notice to fence, personally or by post.

“Formalise it into a notice to fence,” Thexton says. “Then, if possible, a lawyer should give the neighbour a call.” He says a lot of lawyers aren’t keen to resolve a dispute by phone which takes 20 to 30 minutestheir fees won’t be high. “But sometimes people’s ears prick up when a lawyer rings,” he says. “The fundamental thing is to ensure the neighbour you’re seeking to get payment from understands their obligation at law. It often becomes a question of getting the other person to take notice of the action. They might receive a notice to fence in accordance with the Act but they simply ignore it.”

MEDIATION

What if the neighbour continues to object?

The next step is mediation, which is designed to keep the issue out of the courts and hopefully find a resolution.

Most states have a mediation service. In South Australia it’s Community Mediation Services (CMS). Executive director Peggy Kadis says when people approach them about fencing disputes they ask if they’ve approached the neighbour themselves. Most have.

“We do get some people that ring and haven’t approached their neighbour,” she says. “We usually get them to do that unless there’s some issue of safety or fear.” The mediation service will then write to the neighbour saying they’ve been approached.

“Usually the other party gets back to us and lets us know they’ll fix it,” she says. “Or they won’t get back to us. Or they’ll try and negotiate it.

“If it can’t be done by negotiation we bring the parties together for mediation.” CMS has a number of offices where mediation takes place. They organise the closest offices to the neighbours and set up mediation, which runs for two hours, and sometimes longer if necessary. Two qualified mediators attend.

“They’re neutral and they don’t take sides; they’re impartial,” Kadis says. “With clients there are ground rules    to respect each other’s views, to not shout at each other and not abuse each other. We’ve got a complex behavioural dispute process which works to help resolve disputes where it may not have worked before. If it doesn’t work, then it’s not suitable for mediation. There’s only so much mediators can do.”

Batrouney says Slater & Gordon urges people to resolve the dispute through Victoria’s Department of Justice Dispute Settlement Centre, which he says has a strike rate of around 50 per cent.

“We try and get them to go there first. We try and avoid as much as possible neighbours getting in dispute with each other.

We use every means available: firstly to save them legal costs; and secondly so they have at least some reasonably civilised relation ship with their neighbours. That doesn’t always work. If all of that (mediation) hasn’t succeeded we try and talk common sense to the other side and try and get a practical resolution,” Batrouney adds. “Sometimes there’s no alternative to get an umpire’s decisions before the magistrate. What we try and do is not get people to waste money on lawyers.”

COURT

The next step is court, where a decision will be handed down. Batrouney warns: “If you lose you pay all of your own costs and two thirds of the other party’s costs, and vice versa if you win. With court decisions you’re left with an unhappy neighbourhood relationship. The annual Christmas street party isn’t going to be much fun is it?” Batrouney says a standard fence    a 130 foot paling fence    usually costs $2000, which by law the other party should contribute half. “If they don’t you’re much better off building it yourself than going to court,” he says. “You’d spend $3000 to $4000 more going to court. That logic isn’t always appealing to people.”

Thexton agrees court should be avoided.

“The amount of legal costs you can spend on a dispute can possibly outweigh the expense of the fence,” he says.

Ultimately, many people choose to pay for the new fence themselves. If the neighbour strongly objects to contributing this is a valid option and helps keep the peace with neighbours.

“If your neighbour won’t cooperate it’s good value still to spend the money yourself,” O’Dwyer says. “If you own the property a good fence will make it more saleable down the track. The best advice to a property owner, whether they live in it or rent it out, is don’t be stingy on keeping fences and retaining walls maintained.”

Fence disputes are legal issues, but emotions often take over and prevent sensible outcomes. O’Dwyer’s advice is blunt and perhaps the best guideline when people look like becoming embroiled in a fence dispute: “The grief and distress over a fence isn’t worth it. In the big picture, fencing costs are usually pretty minimal in terms of what your property is worth.”

Richard Glover would no doubt agree.

About Ben Power

Ben Power is a freelance journalist.