A neighbour has no legal obligation to contribute to the cost of fencing work unless they have agreed to pay or the Fences Act 1975 (SA) procedure has been followed, or urgent repairs are required.
There is no strict formula used by the courts to determine the sharing of costs between neighbours. As a general rule it will be assumed that each neighbour receives an equal benefit from the fence and therefore should contribute equally to costs. However, where it can be shown that one owner wants a better than adequate and the adjoining owner is happy with an adequate fence, the owner requesting the more expensive fence will have to pay the difference in cost between the two options.
Do I need my neighbour's consent?
Fences should be regarded as a joint asset between neighbours. Even if your neighbour has not paid for the fence they are still a joint owner. This is because a fence on the boundary is legally considered to be part of the land on each side.
If you intend to remove or alter an existing fence, you should have your neighbour's permission or, failing that, a court order. If you want to put up a fence where there has not been one before, your neighbour has a right to object. It makes no difference if you intend to pay the total cost. It is therefore sensible to talk to your neighbour first.
Where both neighbours agree
If you and your neighbour agree on the work and the cost, you do not have to follow the procedure under the Fences Act 1975 (SA). However, even if you do not follow the procedures, it is wise to make a written agreement, signed by both of you. It should state clearly what work is to be done, what materials will be used, what quotes have been accepted, and how the cost will be shared. For an example of such an agreement see the sample agreement at the bottom of this page. Attach copies of quotes for all work.
If you and your neighbour don't agree (or are unlikely to agree) you must use the Fences Act 1975 (SA) notice procedure. It is the only legal method if you want to build, repair or replace a boundary fence and you want your neighbour to contribute to the cost but they don't agree. The process involves filling out a form (called a notice of intention) with details of the work you propose and serving it on (legally delivering it to) your neighbour for response.
If you do not follow the procedure correctly your neighbour does not have to contribute (see the case of Jackson and Jackson v Takacs below).
Notice of intention (where there is no agreement)
Depending on the type of work you are proposing there are different forms to be used.
If you want to erect a new fence you will need to serve a Notice of Intention to Erect a Fence [see Fences Act 1975 (SA) Form 1]. If you wish to repair, replace or carry out maintenance work on an existing fence then a Notice of Intention to Perform Replacement, Repair or Maintenance Work [see Fences Act 1975 (SA) Form 2] is the relevant form.
Time limits to respond
Under the Fences Act 1975 s 6, after serving the notice you must then wait for thirty days to see if your neighbour serves a cross notice [see Fences Act 1975 (SA) Form 3] objecting to the proposal and whether they raise any counter proposals (i.e. what they want done to the fence instead). Unless your neighbour has agreed to your proposal you must wait the full thirty days before commencing work and if you do not you will lose the right to recover costs from your neighbour (see the case of Jackson and Jackson v Takacs below). If you don't agree with the counter proposals served by your neighbour you have thirty days to object in writing.
How to serve a notice
A fencing notice (a Notice of Intention or a cross-notice) can be served by either:
If the identity or address of the adjoining owner cannot be found, the notice should be placed in a prominent place on the land and the work not started forthirty days to allow time for a cross notice to be served [Fences Act 1975 (SA) s 9]. Ideally, court orders should be obtained on the Notice of Intention and on the contribution the adjoining owner should pay. The local council or the Lands Titles Office can provide the name and address of an adjoining owner.
A land owner is deemed to have agreed to a proposal (or counter proposal) if an objection in writing is not served within the 30 days. Both neighbours are then normally bound by the terms of that notice including the amount of money that each must pay.
What if the work is not commenced or not completed?
If, after agreement has been reached, the person who initiated the proposal does not start or discontinues the work for more than twenty eight days, the adjoining owner can proceed with the work and recover the amount due under the original agreement [Fences Act 1975 (SA) s 8(3)]. The work must be completed within the time agreed or as ordered by the court. If no specific time frame has been agreed or ordered, work must be completed within four months [Fences Act 1975 (SA) s 8(6)].
Urgent repairs and replacements
If there is an urgent need to repair a dividing fence that has been damaged or destroyed, one owner can proceed without giving notice to the other. They may also recover either half the cost or whatever the other owner would have had to pay if the notice procedure was followed, whichever is the lesser amount [Fences Act 1975 (SA) s 16(1)].
For more information about fencing and relevant forms see the sa.gov.au website.
|Fencing work agreement|
|The following notice is an example of how to record an agreement regarding fencing work where both parties are agreed on the work to be done and the costs.|
FENCING WORK AGREEMENT
owner of land at:
owner of land at:
We agree to proceed with fencing work along the boundary between our properties described above. The particulars of the fencing work are as follows:
Total cost of fencing work $____________________ as per attached quote from
____________________________________ will pay for the fencing work and will
be paid the sum of $ ................................ by the adjoining owner on
completion OR by regular payments of $ ........................... commencing
on .........../............../......... and continuing weekly/fortnightly/monthly until the
contribution is paid in full.
Signed by Date
Signed by Date
The Jacksons gave their neighbour notice that they wanted to put up a fence. Their neighbour told them he could not afford to pay any money (contribute) but failed to serve a cross notice objecting to the Jackson's notice. However the Jacksons went ahead and built the fence without waiting the thirty days. When the neighbour would not pay, the Jacksons took him to court.
The neighbour did not have to pay any money towards the fence as he had not agreed to pay, nor could it be presumed that he agreed to pay before the thirty days was up. Even though the neighbour had not served a cross notice, the Jacksons were not able to recover any money for the fence as they failed to wait the thirty days before building the fence.Source: Jackson and Jackson v. Takacs Small Claim No. 2701/84 Southern Districts