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.
Contribution to fencing costs as between tenant and landlord
A tenant who does not forward a Notice to Fence to his or her landlord within fourteen days of receipt is exposed to full liability for the fencing contribution being sought by an adjoining occupier: see Tenant for further details.
In other cases, the tenant's contribution is as follows:
Contribution to fence repairs
If a tenant's negligence causes loss of or damage to a fence from fire or a falling tree, the tenant is liable for 100% of the replacement cost (S.14(a)).
In all other cases, a tenant is liable to contribute to repairs in a proportion to be agreed on, or as determined by the Magistrates' Court (S.14(b)). Often, however, the cost of fencing repairs (to be shared with an adjoining occupier) falls to a tenant under the terms of the lease.
Contribution to fence construction
A tenant is liable to contribute to the cost of constructing a fence if the unexpired term of the tenant's interest in the property is three years or more. If the unexpired term of the lease is less than three years, and there is no other basis upon which the tenant is liable - such as negligence or failure to forward the fencing notice to the landlord - the landlord pays the whole (S.10).
The proportion of the cost payable by the tenant varies with the length of the unexpired term of the tenancy in accordance with the following formula:
- where the period of the remaining tenancy is at least 3 years but less than 6, the tenant pays one-quarter of the cost otherwise payable by the landlord;
- where the period of the remaining tenancy is at least 6 years but less than 12, the tenant pays one-half of the cost otherwise payable by the landlord;
- where the period of the remaining tenancy is 12 years or more, the tenant pays the whole cost otherwise payable by the landlord.
Tenant with a right to purchase
If the tenant has a right to purchase the land at a fixed rate, the tenant in completing the purchase must pay the landlord, on top of the agreed purchase price and as part of the purchase money, any sum paid by the landlord in accordance with the above formula, together with interest on the amount, calculated at 8% per annum (S.11).
Recovery of monies as between landlord and tenant
If either the landlord or the tenant pays more than his/her proper proportion of the cost, s/he is entitled to recover the excess from the other party.
A tenant may deduct any sum recoverable from any rent payable to the landlord (S.10(2))
Otherwise, action by either party to recover the debt can be taken in the Magistrates' Court.(S.10(2)). See also Enforcement.