Fencing, boundary and encroachment disputes
A fence being built between neighbouring properties should be located on a property boundary. Many existing fences are not located exactly on a boundary. This does not change the position of the boundary or the legal rights to ownership of the land, even if you and your neighbour agree to the fence position.
Regardless of whether the fence sits precisely on the boundary or not, it is still jointly owned by you and your neighbour. Even if you want to pay for the entire cost you must get consent from the owner of any neighbouring land to:
- remove an existing fence
- repair or carry out maintenance work on an existing fence
- build a new fence
- enter a neighbouring property to carry out work on the fence.
Although a fence is considered equally shared there is no legal obligation for your neighbour to contribute towards the cost of repairing, maintaining or erecting a fence unless:
- they have agreed to it
- the proper notices have been given
- a court orders them to.
You should check with your local council about fences that need development approval or any other legal requirements you must meet before you begin work. Restrictions apply for:
- masonry (stone, brick or concrete) fences higher than one metre
- any other kind of fence higher than two metre
- fences higher than one metre and less than six metres from a road intersection
- brush fences.
Giving notice for fencing work
If urgent fence repairs are required you do not have to give written notice to your neighbour, but it is recommended you give them as much notice as you possibly can.
If you want to build a new fence you must give the owner of the neighbouring land notice of intention to erect a fence .
If you want to repair, replace or carry out maintenance work on an existing fence you must give the owner of the neighbouring land notice of intention to replace, repair or maintain a fence .
These notices can either be delivered to your neighbour personally or sent through registered post.
Your neighbour then has 30 days to give you a cross-notice if they object to your proposal. You cannot start work until these 30 days have passed or you have received written notice from your neighbour consenting to the work. If you haven't received a written objection within 30 days you can assume they consent to your proposal.
Your neighbour doesn't have to state why they object or give an alternative option in the cross-notice. If the matter goes to court they will have to give good reason as to why they object - otherwise the court may order the work to proceed.
our>For an alternative version of these documents contact the Legal Services Commission of South Australia.
Finding the owner of neighbouring land
If you don't know who owns the neighbouring land you can contact your local council or access SAILIS. If you still cannot find the owner you can prominently display the notice on their land. If you haven't received a written objection to your proposal within 30 days you can assume they consent to the work.
Disputes over fences
You should talk to the owner of the neighbouring land in a calm and courteous manner if you are in disagreement about:
- sharing costs
- carrying out the work
- the type of work required - eg repair the fence rather than replace it
- accessing their land to carry out the work.
If you cannot reach an agreement you can contact Community Mediation Services. They can act as an independent third party to help you reach agreement.
If the issue is still unresolved you may choose to take the matter to the Magistrates Court. It is recommended that you seek independent professional advice from a solicitor.
The court can determine:
- whether the fence should be erected
- type of fencing used
- its location
- who does the work
- when and how the work is carried out
- how costs are shared
- orders for entry or access to the adjoining property.
A brush fence is a fence or gate that is primarily constructed of brush such as broombrush.
Brush fences in close proximity to dwellings are fire hazards that may be a risk to the safety of occupants.
There are safety requirements for new homes and home additions located (or proposed to be located) within three metres of a brush fence to prevent the spread of a brush fire to a home.
A new dwelling or addition to a dwelling located within three metres of a new or proposed brush fence must be constructed with appropriate fire resistance measures.
A new brush fence, or a rebuilt existing brush fence cannot be erected within three metres of an existing or proposed dwelling, unless the dwelling has appropriate fire resistance measures.
The fire resistance measures for buildings are prescribed in the Building Code of Australia.
The construction or alteration of a brush fence may require development approval, advice can be sought from the local council.
These requirements do not affect existing brush fences or existing dwellings if no changes are being made to the fence or dwelling.
Existing brush fences can be repaired, but not replaced with another brush fence unless the fire resistance measures of the building are appropriate.
A property boundary defines the extent of legal ownership of a parcel of land and its position can only be determined by a licensed surveyor.
If you are in dispute with a neighbour about the boundary location you can engage the services of a licensed surveyor to physically mark the boundary.
Once the boundary has been marked, anyone who moves or removes a survey mark may face fines and legal action.
A fence may not necessarily be an accurate representation of the boundary line. Regardless of the fence's position, it does not alter the actual boundary location or the legal rights to ownership of the land.
An encroachment is an intrusion of a structure, including overhanging structures onto another person's land. It can include but is not limited to, buildings, driveways, eaves and balconies.
To determine if encroachment exists on your property, you should hire a licensed surveyor to mark the boundary. Only licensed surveyors can mark out boundary positions. If your neighbour refuses to have a survey carried out you can take the issue to the Land and Valuation Court where a legal order may be made for the survey to be conducted.
There are provisions under the Encroachments Act 1944 if a structure is found to be encroaching on your property. You can apply to the Land and Valuation Court for:
- payment of compensation by the adjoining neighbour
- the land to be transferred or leased to the encroaching neighbour, or
- the removal of the encroachment.
When making their decision the court will take into consideration:
- who made the application
- the nature and degree of the encroachment
- the losses involved for each person
- the circumstances in which the encroachment was made.
About fences - Legal Services Commission
For an alternative version of these documents contact Building services.