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Fencing disputes

If your building contract includes the construction, replacement or repair of a dividing fence, the homeowner will have a number of legal obligations that must be met before you start.

In South Australia, the Fences Act 1975 (the Act) covers the construction of dividing fences, the repair of existing fences and financial contributions between adjoining owners.

Construction of a fence

There is an obligation on the owners of adjoining residential land that is not divided by an adequate fence to provide an adequate fence.  This can be achieved by:

  • the parties coming to an agreement or 
  • determination by the Magistrates Court.

Only the owners of the properties, or occupiers who have the consent of the owner, have rights and obligations under the Act.  

Notice to fence

If the builder intends to install a new fence on a property, the Act requires the owner (proponent) to serve the adjoining owner with a Form No.1 Notice of Intention to Erect a Fence. If it is a replacement fence, then the proponent must serve the adjoining owner with a Form No. 2 Notice of Intention to Perform Replacement, Repair or Maintenance Work.

The mandatory elements of a notice is that it:

  • is in writing
  • specifies the boundary to be fenced
  • contains a proposal for fencing the boundary
  • specifies the kind of fence proposed
  • includes an estimate of the cost and
  • lists the name of the proposed contractor. 

Cross-notice

Within 30 days of receiving a notice to fence, the adjoining owner may serve a Form No. 3 Cross-Notice containing an objection to the proposal or a counter-proposal.

Within a further 30 days, the proponent may object by written notice to the counter-proposal. 

Acceptance

If either of the parties fails to serve a counter-proposal notice or objection to a counter-proposal within 30 days of being served, then they are taken to have agreed to the proposal or counter-proposal.

Alternatively, a party may agree to a proposal or counter-proposal by written acceptance.

Time to fence

Either party may proceed with the works upon the expiration of the 30-day period from notice to fence or the notice of counter-proposal where no objection has been received within that time.  There can be no request for contribution unless the appropriate notices have been given.

Access to adjoining land

A person, including a building or contactor, may enter adjoining land for the purpose of carrying out fencing work in accordance with the Act.

They must give the owner of the land at least two days’ notice before entering the property, except in the event of an emergency.  The notice must be in writing and delivered in person or by registered post.

Failure to fence

A party may perform the work as set out in the notice if the other party:

  • fails to commence the work within 28 days of having become entitled to do so or
  • discontinues the work for a period of more than 28 days.

If neither party progresses the work within the agreed time period, or if there is no agreed time period then a period of 4 months, the agreement to fence shall lapse.

Repairing a fence

The cost of repairing the fence is as agreed between the parties or where no agreement can be reached, as ordered by the Magistrates Court.

However, if the damage was caused by an adjoining owner, they are solely liable for the cost to repair the fence.  The notice to repair should detail the reason for the damage.

Notice to repair

The Act requires the proponent to serve the adjoining owner with a Form No. 2 Notice of Intention to Perform Replacement, Repair or Maintenance Work.

Time to repair or contribute

If the adjoining owner was responsible for the damage, the owner must state the cost of the proposed repair works and the amount they are seeking to recover from the adjoining owner towards the costs of the proposed works. The adjoining owner may reject this with a Form No. 3 Cross-Notice within 30 days. 

Disputes

Magistrates Court

If the parties cannot agree on a fencing matter, a party may make an application to the Magistrates Court to determine:

  • the kind of fence
  • the position of the fence
  • the time to fence and
  • any financial contribution by the parties
  • costs may be awarded to the successful party.

Further information about this process is available on the Courts SA website

Mediation

South Australia’s Courts Department also provides a mediation service, which assists the parties to:

  • identify the primary issues in dispute
  • consider their options
  • negotiate solutions and
  • and reach their own agreement.

Typically the costs of mediation are shared between the parties.

The Magistrates Court has further information on mediation.

Further information

The SA Government has further information available on fences and the law, including Forms 1, 2 and 3.

 

To find out more, contact HIA's Contracts and Compliance team

Email us

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