Dividing fences & retaining walls – who’s responsible?

It’s not always easy to get on with neighbours when you’re living in close proximity. It’s therefore not a surprise that one of the common causes of disagreements between neighbours is the sharing of boundaries. Differences of opinion often arise over where the boundary lies, the upkeep of the fence, encroachment of bushes or tree branches into the neighbour’s garden, and retaining walls.

This article is specific to New South Wales where the main piece of legislation is the Dividing Fences Act. There are similar pieces of legislation in other states, but there are important differences, so property owners should consult with their strata manager to discuss their specific situation.

 

Retaining walls- who’s responsible?

Failure by one neighbour to maintain a retaining wall can make the structure potentially dangerous for the other neighbour (as well as for themselves, of course). Under the legislation, a retaining wall does not fall under the category of a dividing fence, even if it is on the point that separates two properties. The same applies to any wall that forms part of a house, garage, or other building. For retaining walls, maintenance is the responsibility of the owner, whereas for a strata scheme the responsibility is with the owners corporation.

Strata managed buildings – who looks after what?

Take Jeff, as an example, Jeff lives in a townhouse situated within a strata scheme. The front and back fences of Jeff’s property also mark the perimeter of the property. As such, they are the responsibility of the owners corporation to maintain, but Jeff also has a fence separating his yard from his neighbour’s garden. As this fence does not form part of the perimeter of the property, it is the joint responsibility of Jeff and his neighbour to maintain this fence, and the cost of all modifications, maintenance and repairs should be split 50-50 between the two neighbours.

An exception to this would be where one neighbour wants to replace a shared fence but the other neighbour is quite happy with the existing one. If the existing fence is in good condition, the other neighbour is under no obligation to contribute towards its replacement. When such situations arise, often the neighbour who wants to replace the fence is obliged to pay for the new fence in its entirety.

Generally, when a property shares a perimeter fence with another property, both properties must share the costs associated with the upkeep of the fence.

The NSW Dividing Fences Act – what else should I know?

If you have a dispute with your neighbour over the cost of replacing a retaining wall or a dividing fence, there is the option of resolving the matter in court if you cannot achieve an agreement between yourselves. The Act also allows for monies owed for the repairs or a replacement to be recovered in court.

Watch out for falling trees!

In NSW the Tree (Disputes Between Neighbours) Act 2006, a neighbour whose fence (or other property) has been damaged by a falling branch or tree from your property, has the right to seek compensation in court to cover the cost of the damage.

If you live in a strata managed building and are unsure of your responsibilities, go online and read the legislation applicable to your state, or have a chat with your strata manager.

 

This article first appeared on Homely.