Fences built between neighbouring properties should be positioned on the property boundary.
A property boundary defines the extent of legal ownership of a parcel of land and can only be determined by a licensed surveyor. A fence shouldn’t be relied upon as an accurate representation of the boundary line, as it doesn’t alter the actual boundary location or the legal rights regarding the ownership to land.
Who owns the fence?
The fence is jointly owned by you and your neighbour, even if it is determined that it’s not precisely on the boundary. If you decide to pay for the entire cost of a new fence you must get the consent of any owner of neighbouring land to remove, repair, build a new fence or enter onto their land to carry out work. There is no legal obligation for the neighbour to contribute to the cost of fencing unless they have agreed to it, proper notices have been given or a court orders them to.
If a dispute arises over fencing you should talk to your neighbour calmly about finding a solution, if an agreement cannot be reached, then you can contact Community Mediation Services who will act as an independent third party to reach an agreement. If further disagreement occurs, the matter may go to the Magistrates Court at which time it is recommended that you seek independent advice from a solicitor.
An encroachment is an intrusion of a structure, including overhanging structures, onto another person’s land. It may include buildings, driveways, eaves and balconies.
Encroachments can also occur over easements registered on a Certificate of Title. The only way to determine if an encroachment exists is to engage a licensed surveyor to mark the boundary.
The local Council may also hold records in relation to encroachments and if they have any requirements. For example, a purchaser of a property was concerned that a shed encroached over an easement for drainage to Council which is registered on the title. Upon investigation with Council, who produced a location plan, it was shown that the structure encroached some of the land covered by the easement but not over the pipeline for drainage contained within the easement. They acknowledged that no further requirements regarding the encroachment over the easement were needed.
If an encroachment is discovered, the Encroachments Act 1944 regulates what happens. Under the Act, either party can apply to the Land and Valuation Court for payment of compensation, the land to be transferred or leased, or removal of the encroachment. Once again, independent legal advice is recommended.