WA Fences - What are My Rights under Property Law?

[Alina]

My neighbour called me few months ago and said that she needs to remove the dividing fence between us because she is starting the building project on her block and she wants a new boundary fence eventually. After that, we have been communicating quite amicably by phone and e-mail and seemed to agree on the following points:

- I said that I think the fence is good and proper and I have no need to change it, but she can go ahead provided she will pay for everything

- I wrote to her saying that for my security I don’t want to be without any fence, so after removing the current fence there should be a temporary fence or a new one. My neighbor agreed verbally and in her e-mails to me.

Four days after our initial phone conversation, I typed all these and sent it in a registered mail to the address advised by the local council. My mail was never picked up, even though I tried two more times, the second time to the initial address, and the third time to a different address obtained directly from my neighbor.

By now the fence is removed and the temporary fence is up, but my neighbor e-mailed to me that she will only pay for few weeks of the fence renting even though she anticipates her building project will take longer. If I want the temporary fence for longer I must pay for it myself.

I don’t think it is right. What are my rights under Property Law and what can I do to secure my property?

 

[Sophea]

Hi Alina,

Dividing fences that form a boundary between properties are mutually owned by both neighbours and, in general, both neighbours are liable to pay half the cost of maintaining the fence. Therefore, the existence of a fence as well as its height, style, and materials should be negotiated between you both.

If a fence is removed (even temporarily) by one neighbour without the consent of the other, or without following the proper procedure under the Fences Act, they may have to compensate the other neighbour. Since you agreed to the temporary removal of the fence and the installation of a temp fence until such time as the new fence was installed, but your neighbour has failed to maintain some fence boundary as she had agreed to do, she may be liable to compensate you.

I would either:

• Seek legal advice from a lawyer who may be able to help you negotiate an outcome.
• Book a mediation session with your neighbour through a local dispute resolution centre.
• Apply to the Magistrate’s Court for an order requiring her to maintain a fence or compensate you for the cost of doing so.

 

[Alina]

Thanks, Sophea,

I am aware of the basic rules in relation to joint owning of the dividing fences. The fence that was between our properties was a proper fence and did not need repair. I was upfront with my neighbour about my intentions in the matter. I do not believe I am liable to pay for the half of it. At the moment, this does not appear to be the issue.

The temporary fence is now not only part of our agreement to replace the permanent fence, but also, I believe, part of the compliance with the building permit. I researched the Building Act 2011 and it appears to be quite clear that when the dividing fence is down as part of a construction project, a sufficient temporary boundary must be maintained. Since the construction project is happening 5 meters away from my house and 1 meter away from my shed, I cannot see how it cannot be the builders obligation to maintain the temporary fence until the replacement fence is erected or the building project is finished whichever is sooner.

Is there anybody who can help me how to continue?

 

[Sophea]

Yes, I suspected that might be the case as well - if it is your neighbour's or the builder's obligation to maintain a fence around the construction site then they can't require you to pay for it. They must factor this into the cost of the construction and obtain it themselves.