A shared fence (also known as a dividing fence) is a fence that separates adjoining owner’s lands. It is usually a common boundary. In NSW, there is legislation that sets out the legal detail around dividing fences. For example, the Dividing Fences Act 1991 (NSW) defines a fence as any structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land.
Who is responsible for shared fence repairs?
If a shared fence is damaged through no fault of a property owner such as in a storm event, then the costs would ordinarily be shared by the adjoining owners. If one of the adjoining land owners has repairs undertaken before formally notifying the other owner in accordance with the Dividing Fences Act, then that owner is not liable for the cost associated with the repairs.
Usually, the best way to manage any problems is to formally notify your neighbour before undertaking any repair work.
What if one of the land owners damages the fence?
If a land owner was responsible for damaging the adjoining fence, then they may be liable for the full cost of repairs. In addition, if someone who enters the land owner’s property with their express or implied permission and damages an adjoining fence, then the land owner giving access may still be responsible for the cost of repairs.
An example might be if a guest at a party you are hosting damages an adjoining fence, then you may be responsible for the costs of repairs.
What level of repair is required?
Under the Dividing Fences Act, the adjoining land owners are required to share the cost to restore the fence to a reasonable standard. There is no requirement to restore the fence to a higher standard.
However, the adjoining land owners are able to reach their own agreement on how they share those costs. For example, one land owner might take the opportunity of a damaged fence to upgrade the fence to one of a better standard. The other adjoining land owner may be willing to share the additional cost associated with a higher quality fence.
Any cost sharing agreement should be in writing, clearly set out the agreement and be signed by both parties.
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