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VIC Common Boundary Fences - Rights Under Property Law?

Discussion in 'Property Law Forum' started by TraceyS, 30 June 2015.

  1. TraceyS

    TraceyS Member

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    We live in a court of 10 houses of one acre properties. All house boundaries are defined by farm fencing or wire fencing or no fencing other than trees. When we brought the property 10 years ago we had the block surveyed. There was no fencing on 2 boundaries other than old paddock fencing so no real dividing lines. When we were building the house one neighbour put in more substantial fencing between the two properties following what he believed was the boundary and following the original paddock fence line which had been there for years. The fence was still a post and rail and wire fence. He paid for the fencing completely. The house has since been sold twice.

    New neighbours have now been in the house next door for about 6 months. They have just had their block surveyed with the intention I believe of putting up more substantial fencing to keep their dog in. I am unsure of this as they do not speak to us. They did not have the block surveyed before they bought it 6 months ago. The first we knew of them surveying the block was when survey pegs appeared on our side of the fence. It appears that when the original owner has put the fence in he has followed the survey line for about 3/4 of the boundary line and then has veered of incorrectly if their latest survey is correct. One survey peg is about 1-2 metres on our side of the fence and another is 4-5 metres on what we thought was our side of the fence. The survey posts surround the neighbours property and have done so now for a couple of weeks. They have made no attempt to contact us or discuss the survey results. The fence in place at present is in excellent condition and it also includes a line of trees on the neighbours side of the fence.

    • What are our rights under property law?
    • Do we have to pay for another survey?
    • Should we believe the survey they have had done is correct?
    • Do we have to move the fence?
    • Do we have to pay to move the fence?

    The fence in place is in excellent condition.The fence in place is in keeping with all other fences in the street but does not keep their dog in. Are they allowed to change the fence without giving us some kind of notice in writing? Do we have to move the fence at all?

    Thank you
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi TracyS,

    Fencing disputes are governed by the Fences Act 1968 (Vic), so the best place to start would be there.

    1. You do not agree with the boundary line

    If you believe the neighbours are encroaching on your land and you do nothing about this, then 15 years after the encroachment started the land could become theirs (called "adverse possession"). This means if the encroachment continues for 15 years, you (or future landowners) will lose this little bit of land to the adjourning land.

    If you wish to dispute the boundary line, you need to serve your neighbours with a "boundary survey notice". This indicates you do not agree with the common boundary and you intent to have the land surveyed again. If after 30 days, you do not agree on the boundary or your neighbours have not invited a licensed surveyor to survey the land, you can invite your own licence surveyor. If you are correct, both owners share the cost of the surveyor. If you are incorrect, you bear the full cost of the new survey.

    2. If the boundary is incorrect and you need to move the fence to reflect this

    Whether you should move the fence is your choice. However, if you do not, and the neighbours are encroaching on your land, as mentioned above, you could lose this part of the land in the future.

    If you ask for the fence to be moved slightly, both parties should share in this cost as the original fence position was incorrect. If the neighbours ask for a higher fence (to keep the dogs in) or a new fence made of better materials, then they bear the cost for this extra requirement. Otherwise, both owners share in the cost for maintaining a reasonable fence on the boundary line.

    Other resources that can help:
     

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