Property fencing – Everything you need to know

We’ve all heard the saying “great fences make great neighbours”.

Fencing of sand walkway to australian beach

Moving into a home is supposed to be a dream come true. Unfortunately, you can’t pick your neighbours, but you can engage a Licenced Conveyancer that will help you make sense of your fencing situation and plan for the long term.

Fences are shared property for all adjoining owners who have their own interests in mind. Historically, the most common problems with fences relate to:

  • Fences not installed exactly on boundaries (i.e. encroachment)
  • Damage to fences
  • Neighbour using fences inappropriately (i.e. as a retaining wall)
  • Construction of new fences
  • Adhering to swimming pool & local council standards

The best course of action!

If you are considering buying a property, ensure you have the assistance of an experienced Conveyancer.  If you have any concerns about the condition or location of the fencing advise your Conveyancer straight away so the adequate steps can be taken.

Your conveyancer can request for a condition in the Contract of Sale for the fence problem to be rectified by the vendor prior to settlement.

Identification Survey Report

An identification survey report is a legal document which determines the boundary of a property. Identification survey reports are usually produced by a private surveyor who is registered with the respective land registry.

The outcome of these reports is a written report and property illustration that may be kept on file by the respective land registrar and may be utilised by other state departments (i.e. the Board of Surveying and Spatial Information of NSW).

identification survey report showing property boundaries

Identification survey reports produce:

  • Measurements of the property and lot numbers
  • Distance between buildings and property boundaries (standards are set by the local council)
  • Neighbouring structures (i.e. guttering, carports)

It is not mandatory for the vendor to obtain a survey report prior to selling the property.

It is also not mandatory for the buyer to obtain an identification survey report prior to buying. However, it is highly recommended that buyers obtain this report or alternatively obtain Stewart Title Insurance. 

If you are working with Hunter Legal & Conveyancing, we can organise a private surveyor who will physically inspect the property and produce an identification survey report for us to review.

Identification survey reports may also be used to resolve fencing disputes.

Stewart Title Insurance

Alternatively, your conveyancer may recommend you obtain what is referred to as Stewart Title Insurance. This is insurance over the title of the property and can cover you for any boundary disputes amongst other things, which may arise in the future. Further information can be found here https://www.stewartau.com/.

Title insurance is initiated at settlement and premiums start at $400 AUD as a one-off payment for the life that you own the property. Hunter Legal & Conveyancing process applications for this type of insurance on most purchases of property and will discuss the options with you on review of your Contract.

Resolving fencing disputes

Ideally, the fences between properties are located exactly on the shared boundary.

If you are considering buying a property which is being encroached by a neighbouring fence (as found in the identification survey report), it is advised to have the vendor approach the neighbour to resolve the issue in a sensible manner. People should be mindful of their long term options for the property and relationships with their neighbours.

two men shaking hands

If you have already purchased a property and discovered issues relating to the property boundaries, ideally, you can resolve this directly with your neighbour and produce an agreement in writing. Law Access NSW has resources to help guide people negotiate with their neighbours.

There are also Government mediums available when resolving fence disputes such as Community Justice Centres (CJC) and tribunal hearings.

In New South Wales, the NSW Civil and Administrative Tribunal (NCAT) offers a tribunal service for neighbours that cannot resolve the dispute themselves. This tribunal will ultimately produce final orders for all parties involved.

A small percentage of people may employ private legal representation in this situation, though hopefully, this is avoidable.

Constructing new fences

People wish to construct new fences for varying reasons, whether for privacy, reduced traffic noise, property value, security, animal safety or simply aesthetics. Fencing projects require considerable communication and each party has their own interests in mind.

The Dividing Fences Act 1991 legislation was created to guide Australians towards a mutually beneficial solution for all fencing related matters (including repairs, standards, liabilities etc).

If there is an existing fence that is ‘sufficient’, it is unlikely the neighbours will share the cost of a new fence.

If there is no fence, or the existing fence is not ‘sufficient’, it is likely the neighbours will share the cost of a new fence.

Part 2, Section 7 states “Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.”

The challenge usually lies with reaching an agreement on what material shall be used, not so much the cost-sharing situation.

There are many other variable situations, from negligence resulting in damage, to urgent works being required or exceeding standard requirements. View the Dividing Fences Act 1991 to learn more.

If people find themselves in a challenging situation, they can seek help from a legal advisory or even engage private legal representation to assist them.

wooden fence near the ocean

Conclusion

Fences can cause an array of problems for adjoining property owners. Before purchasing a property, ensure your conveyancer performs thorough groundwork on the property so you can avoid problems before they surface.

Fortunately, there is a wealth of official resources to guide Australians towards a mutually beneficial solution, as well as legal avenues and services if required.

Hunter Legal & Conveyancing is here to help

  • Free Contract reviews
  • We organise Identification Survey Reports and Stewart Title insurance for your convenience
  • Fixed price conveyancing
  • Our senior conveyancers possess over 25 years in the industry
  • Dispute resolution
  • Assisting purchasers and sellers NSW wide.

Please use our contact page to get in touch or call 1300 224 828 anytime.

Helpful links

http://www.lawaccess.nsw.gov.au/Pages/representing/lawassist_fences/lawassist_cantagree/lawassist_cantagree.aspx

https://www.ncat.nsw.gov.au/Pages/cc/Divisions/dividing_fences.aspx

http://www.lawaccess.nsw.gov.au/Pages/representing/lawassist_fences/lawassist_talkneighbour_fences/lawassist_talkneighbour_fences.aspx