Building or replacing a dividing fence between two properties requires knowledge and planning. This is because the fence is governed by a series of by-laws with fairly explicit boundaries put in place to protect both you and your neighbour’s rights. A dividing fence separates the land between two owners whether the fence is on the common boundary of adjoining lands or on a line other than the common boundary as set out by Landgate. https://www.landgate.wa.gov.au/
Do not commence construction of the fence until you have a clear agreement, preferably in writing with the adjoining owner. Legal action is costly and is likely to damage the relationship you have with your neighbours. The Act recognises a dividing fence as a barrier that separates the land of adjoining properties. The fence can be a structure of any material, a ditch, and embankment or even a vegetative barrier like a hedge, but does not include a retaining wall. Adjoining land owners are liable to share the cost of fencing work if the finished product is a sufficient dividing fence. Each of the owners of adjoining land is obligated to pay half the cost of erecting or repairing a “sufficient” fence to divide their properties. If only one owner wants a fence of a higher standard than the sufficient dividing fence, then that owner must meet the extra cost.
Before you proceed, check with your council to determine if there are local laws that regulate the type of fence that is required in your suburb otherwise owners can decide on the type of fence they want. If the fence is in need of repair the owners of either side of the common boundary are liable to pay half the cost of those repairs. The Act defines the word “repair” as including “re-erect and realign” so the provisions that deal with repairing a dividing fence apply in the same way to fences which need realignment or re-erection.
If you wish to have a dividing fence repaired, you must give the other owner a notice describing the repairs to be made, saying where and stating you are prepared:-
- To repair the fence and pay half the cost if the other owner will pay half the cost; or
- That you permit the other owner to repair the fence and you will pay half the cost; or
- That you agree to pay half the cost of having the fence repaired by a third party.
The other owner then has 14 days within which to object and must notify you in writing of the objection. If you and your neighbour cannot agree, mediation may help. It can get tricky, but the important thing to consider is the value of good working relationships with your neighbours.