Understanding property fencing & boundary lines

 In Conveyancer

Property fencing and boundary lines are a tricky part of property law and sometimes the lines are blurry, especially when neighbours and council regulations are involved. 

We’re here to make sure you can fully understand the requirements and your rights, when it comes to your property’s boundaries. 

Here’s how you can avoid a fencing war with your neighbours and stay in your local council’s good books. 

Is there a law about fences? 

In NSW, the laws on fencing are governed by the Dividing Fences Act 1991, which defines a dividing fence as a ’fence separating the land of adjoining owners.’  

The act also defines a fence as a ‘structure, ditch or embankment, or a hedge’ that’s enclosing or bounding land. 

Generally, adjoining owners are equally responsible for the cost of the fence, however there are some exemptions. 

How do I know if the boundaries and fencing on my property are correct? 

When you’re buying, selling or renovating a property, it’s wise to check your property boundary lines. 

Why? Because over the years with the erection of fences and the planting of hedges by multiple homeowners it’s common for the boundary to shift significantly. Fences are often constructed without obtaining a survey, which could mean the fence is not on the boundary, and you could be losing or encroaching on land. 

Start with the registered plan and title to the property as these documents outline the rights of ownership. However, the most effective way to measure your property boundaries is to have your property surveyed by a professional land surveyor.  

Taking out Title Insurance as a smart preventative measure to combat boundary disputes. It’s important to note that your title insurance policy will only cover you for damages that are uncovered during the usual course of ‘living’. Therefore, if a surveyor is employed during the purchase process and discovers a defect, title insurance will NOT cover the cost of repair. 

What if I want to renovate or replace the fence? 

If you want to update the fence on your property, but the current fence is structurally sound, or as the courts describe it as ‘sufficient’, there are few things you need to know: 

  • If you’re willing to pay for the full cost of the fence, you don’t need to come to an agreement with your neighbour about its design. 
  • You will need to follow any local council regulations, and 
  • Get permission from your neighbour before removing the existing fence or entering their property to carry out the work on the fence. 

What’s a ‘sufficient dividing fence’? 

When the courts make their decision on what constitutes a ‘sufficient dividing fence’ they consider the following: 

  • The standard of the existing fence; 
  • The purpose of the fence; 
  • The way the land on either side of the fence is used; 
  • The privacy or other concerns of each neighbour; and 
  • The kind of dividing fence that is usual in the area. 

Generally, both neighbours equally share the cost, however, if a neighbour wants a fence that’s of greater standard than a ‘sufficient dividing fence’, then that party is responsible for paying for the additional costs involved. 

Will a swimming pool affect the fencing boundaries? 

A swimming pool barrier can form a part of your dividing fence, but the owner of the pool is usually responsible for any costs involved with that fence. 

This includes repairs, alterations, construction, replacements or maintenance to the part of the dividing fence that’s also the swimming pool fence.

What if the fence is damaged?  

If the fence is damaged, the party at fault is responsible for the cost of fixing or replacing the fence. 

If a fence is removed without the consent of the neighbouring party, the party who removed the fence may be responsible for the full cost of its replacement. 

The best approach when dealing with a damaged fence is to talk to your neighbours first and to be transparent with them. They may be more understanding and agreeable than you think!  

What if I can’t reach an agreement with our neighbour? 

If a neighbour refuses to compromise or come to the party, this can trigger a dispute. This happens often enough that there are processes in place to help you resolve the issue. 

Mediation is run by the Community Justice Centre and is designed to find a resolution without having to use the judicial court system. During this process, two qualified mediators attend to work through the issue with the relevant parties. These people are completely impartial mediators who aim to resolve the dispute in a fair manner. 

If an agreement can’t be reached during negotiations, a Fencing Notice may be served, giving your neighbour notice that you plan to build, fix or replace the fence. They have one month to respond. 

If your neighbour doesn’t respond in time, you can then apply to the Local Court of the NSW Civil and Administrative Tribunal (NCAT) for a Fencing Order, which means NCAT have made the final and lasting decision for both parties involved. 

Final Fencing Checklist 

Now that we’ve covered the ins and outs of fencing regulations, here’s a checklist to go through when you’re inspecting or agreeing to a fence: 

  • Are there any council requirements? Visibility? Height restrictions? Materials? 
  • Is there a swimming pool involved?  
  • Are there land use restrictions listed on the title, which may limit what fencing options are available? 
  • Should I employ a surveyor to get an accurate boundary line? 
  • What do you consider to be sufficient, in terms of the proposed changes and money involved?  
  • Do both parties agree? Can we come to an agreement? 

If you’ve got any questions about a property’s boundary and fencing requirements, don’t hesitate to give the team at Impero Conveyancing a call on 4910 0522. Our experienced and friendly team will be there to guide you through the process! 

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