What is a 'dividing fence'?
A dividing fence is a fence built to separate two pieces of adjoining land. It may or may not be located on a common boundary. It does not include a retaining wall.
In general, both you and your neighbour are equally responsible for the building and maintenance of a dividing fence.
My property does not have a dividing fence
If you need to build a fence to divide two pieces of adjoining land, both property owners are equally responsible for the cost of building the fence, as long as the proposed fence fits the definition of a 'dividing fence.'
Obviously, the first thing to do is to talk about your plans to build a fence with your neighbour. Explain to your neighbour that since your land is 'adjoining' to theirs, a fence should be built to properly divide and define the property.
If your neighbour is difficult to communicate with face-to-face, write a letter. It's best to try to keep the tone of the initial letter as friendly as possible. In your letter, describe what sort of fence you would like to build, such as height and intended material, along with the estimated cost. You may want to provide a few different quotes from some builders.
If you and your neighbour come to an agreement about the dividing fence, then it’s a good idea to set out the terms of the agreement in writing. Download our dividing fence agreement template to easily draft up an agreement and send it to your neighbour.
My Neighbour refuses to pay for the dividing fence
If your neighbour refuses your requests, whether verbally or in writing, you can send a 'fencing notice' to your neighbour This is a legal document specific to your state that sets out the proposed works and provides a timeframe to respond.
If your neighbour does not respond within that timeframe, you can initiate legal action in the Magistrate's court in your State or Territory.
Changes to Victorian fences legislation
The Victorian laws relating to fences changed in 2014. The changes mainly relate to the processes for disputes relating to dividing fences.
Before the changes to the law, there were 2 different processes to follow, depending on whether you were building a new fence, or whether an existing fence needs repairing. Now, the process is the same. You need to first speak with your neighbour and try to agree on the cost, type of repair, etc.
What if I cannot reach an agreement with my neighbour?
First, you will need to give them a Fencing Notice setting out what you propose. There is special form required. If your neighbour does not respond to the Fencing Notice within 30 days, you can proceed with what you proposed in that Notice. If your neighbour does not agree, you will need to initiate an action in the Magistrate’s Court in your State or Territory.
Need help with a fencing notice or statement of claim for a fencing matter?
This article contains information of a general nature only and is not specific to your circumstances. This is not legal advice and should not be relied upon without independent legal or financial advice, specific to your circumstances.