If you make the unfortunate discovery that your neighbour’s fence is encroaching on your land, don’t panic! There are a few options to ensure that you and your neighbour can reach a happy and fair resolution.
It’s a good idea to keep on good terms with your neighbours, but sometimes disagreements and disputes arise – and they’re often about the dividing fence between your two properties. What do you do if you realise (or suspect) that your neighbour’s fence is on your land? How can you approach the issue without destroying good neighbourly relations? Here are a few tips on what to do if you think your neighbour’s fence is on your land.
Just because the fence is there, that doesn’t mean it’s your boundary
It’s very common for fences to not be exactly on the boundary line – more common than you probably realise! And that can be for a variety of reasons such as a builder who thought near enough was good enough or a past agreement between neighbours (long forgotten) to move the fence slightly to accommodate a tree. Never assume that because your fence is where it is, the fence represents the boundary.
How to establish where your boundary is
The only definitive way to establish your boundary is by getting your land surveyed by a licensed surveyor – and that costs money. An easier first step is to get a copy of your title from the Land Titles office. This will allow you to make an approximation of where your boundary is which may be enough to confirm (or not) that you have an issue with a neighbour’s fence encroaching your property.
You think your neighbour’s fence is on your land – what to do next
The very first step (and this goes for any issue involving your neighbours) is to approach them about the issue and explain your concerns. If you have proof that the fence is encroaching your boundary (such as evidence from the Land Titles Office, or a surveyor’s report) then make sure to give them a copy of this information. Always approach the issue assuming that the neighbour’s encroachment was unintentional. It’s the exception where a neighbour has deliberately encroached on their neighbour’s property.
Get a surveyor’s report
Once you have raised the issue with your neighbours the next step is to get the land surveyed by a licenced surveyor so that you both have a clear idea of the magnitude of the issue. Even if you have had the land surveyed previously, your neighbour has the right to get it surveyed again.
In most states, there is a formal process for you to follow and it’s good practice to follow this process so that if you fail to agree at some point, you have the proper documentation in place to demonstrate the steps taken by both of you to identify and resolve the issue. In Victoria, for example, you should issue a boundary service notice to your neighbour. This outlines your intention to get the land surveyed to establish the boundary unless the boundary can be agreed. Your neighbour can either agree to the boundary, engage a licenced surveyor or take no action. If after 30 days the issue remains unresolved, you can engage a surveyor to survey the property. Generally, both neighbours split the cost of the survey.
Try to agree on a resolution
Once the boundaries have been established, if it transpires that your neighbour’s fence is on your land, try to reach an agreement with them on the next steps which could be:
- The fence is moved to the correct spot;
- A new fence is constructed;
- You agree on an amount of compensation the neighbour will pay for the portion of land being encroached; or
- You agree on no action because the encroachment is so minor.
If you and your neighbour agree that compensation is the best approach, seek legal advice so that this can be properly documented and recorded on the property’s title.
If you disagree…
If you and your neighbour can’t reach an agreement about the right course of action to take to resolve the issue, then in most states, the next recommended step is mediation. This is where an independent party moderates the discussion between you and your neighbour and tries to find some common point where you can agree.
The aim of mediation is to try to keep the dispute out of court as court action is costly, time-consuming and detrimental to good neighbourly relations.
What happens if you take the matter to court?
If you can’t reach a settlement through mediation, then you can choose to take the matter to court. Never make this decision without seeking legal advice first as your lawyer may still be able to recommend an approach that avoids legal action. If you do end up in court, however, you need to understand that the court’s decision is final and you need to abide by it, whether you agree with the outcome or not.
It’s not automatic that a court will force your neighbour to move the fence. Courts will consider many factors relating to the case including how long the fence has been there, whether your neighbour had prior knowledge of the situation and what the cost will be to rectify the issue versus the value of the land that has been encroached on.
What happens if you need a new fence?
If the two parties decide that a new fence constructed on the boundary is the best solution, then the general rule of thumb is that the parties should split the cost of the fence. However, through agreement or court order, it may end up that one party pays for more (or all) of the fence themselves.
Regardless of who is paying for the new fence, you should still reach an agreement with your neighbour on the design and construction of the new fence. It’s helpful in these instances to use a reputable fencing contractor who can provide objective advice about the best dividing fence for the properties. Jim’s Fencing are the largest fencing contractor in Australia and can advise you and your neighbour on the best fencing solution for your properties. Phone 13 15 46 to speak with a local fencing expert or to arrange a quote.