Fencing Quickguide
PLEASE NOTE: The Committee is not able to provide advice about fences. If you are unable to find an answer to your question in the Fencing QuickGuide, please do not contact the Committee as we will be unable to assist you. We suggest that you contact a community legal centre (http://www.communitylaw.org.au/find_a_clc.php) or a solicitor instead.
Fence repairs
Liability
Each occupier who is liable under the Act is liable to contribute to the cost of fencing repairs in a proportion to be agreed on, or as determined by the Magistrates' Court (S.14(b)).
Proportion
In most cases it will be reasonable for each occupier to contribute 50% of the cost, but there may be special circumstances to justify a different proportion.
If a dividing fence is destroyed or damaged by fire or a falling tree as a result of neglect by one occupier, that occupier is liable to replace the entire fence or repair it completely at his or her own cost (S.14).
If one occupier causes damage to a fence or shortens its life through some other activity - for example, piling soil against the fence and causing it to rot - a Magistrate can take that into account when determining the proportion each occupier is to pay. Whether and how much the Magistrate will take it into account is not possible to say.
Procedure
A person who wishes the occupier of adjoining land to repair or contribute to the cost of repairing a dividing fence should serve a notice to that effect on the adjoining occupier (S.15(1)). The notice should specify the section(s) of the fence to be repaired, the nature of the proposed repairs and the estimated cost.
If the adjoining occupier does not repair the fence or contribute to its repair as requested within one week of receiving the notice, the person serving the notice may repair the fence and then demand and recover from the adjoining owner such proportion of the cost of repairs as is agreed or as determined by the Magistrates' Court.
Urgent repairs following accident
If any part of a dividing fence is destroyed by accident, either occupier may immediately repair it without any notice to the adjoining occupier and then demand and recover from the adjoining owner such proportion of the costs of repairs as is agreed or as determined by the Magistrates' Court (S.15(3)).
If you know who caused the accident, you may be able to recover damages from that person to meet the cost of repairs, which you are entitled to do at common law. This also applies if an accident by your neighbour caused the damage. You would then expect him or her to pay wholly for the repairs.
Right of entry to undertake repairs
You have a right of entry to your neighbour's property if necessary to effect repairs, provided you are acting in accordance with the above procedures.