Dividing Fences
The 2011 Joint Form General Conditions for Sale states that except as otherwise disclosed in writing by the Seller to the Buyer before the Contract date, the Seller represents and warrants to the Buyer as at the Contract date and as at the earlier of possession and Settlement as follows:
The seller does not know of any of the following:
Any obligation to:
- Construct or repair; or
- contribute towards the cost of construction or repair of, a
Dividing fence between the Land and any adjoining land whether arising under the Dividing fences Act 1961 or otherwise.
And
As far as the Seller is aware, each dividing fence and wall is on the boundary of the Land.
A dividing fence is a ‘sufficient fence’ that separates the land of different owners, whether on the common boundary of adjoining lands or in a line other than the common boundary.
A ‘sufficient fence’ is:
- a fence prescribed by a local government local law as the minimum standard of fencing in that locality;
- a fence of any standard agreed upon by adjoining owners provided that it does not fall below the standard prescribed by the relevant local government law;
- a sufficient fence that is ordinarily capable of resisting the trespass of cattle and sheep; or
- a fence determined by a magistrate in a magistrates’ court to be a sufficient fence.
If you erect a dividing fence of a higher standard than a sufficient fence without first obtaining the agreement of the adjoining owner, you may only claim half the cost of erecting and maintaining a sufficient fence as defined above.
The Act does not bind the Crown, so where the adjoining land is owned by the Commonwealth, State or local government and is used for public purposes, the Crown is not required to contribute to the costs of erecting or maintaining the fence.
Erecting a new fence between developed blocks
If you want to erect a dividing fence, a written notice must be provided to the neighbouring owner, which sets out:
- the boundary to be fenced;
- a proposal for fencing; and
- the kind of fence proposed to be constructed.
You may also wish to check your Certificate of Title with Landgate to determine any covenants that relate to dividing fences on your property.
If owners of adjoining land are unable to reach an agreement after 21 days, either owner may make an application to the Magistrates Court. In making its order, the court will consider the type of fence typically constructed in the area, how the lands are used and any local laws prescribing the type of fence for your area.
Where the owners agree or a court orders the erection of a fence, the owners must fulfil their obligations within the specified time (or within three months if no time is specified). If an owner does not fulfil their obligations within this time, the other owner may complete the work and recover half the costs from the owner in default by issuing a summons in the Magistrates Court.
Vacant land
This section applies only where one or both of the adjoining lots of land is vacant.
Where one or both blocks are vacant, you should attempt to negotiate a written agreement with the owner of the adjoining block and the fence should be erected according to the terms of the agreement.
However, you may erect a sufficient fence without giving notice or reaching agreement with the owner of the vacant land and still obtain a contribution towards the cost.
The owner who has erected the fence may claim from the adjoining owner whether or not notice was given or an agreement was reached.
Except where there is an agreement or a court order, you cannot recover any of the costs from the owner of adjoining land that is vacant unless or until the current owner of the adjoining land:
- has completed a substantial building or structure on the land;
- has occupied or occupies a building or structure on the land; or
- has permitted or permits some other person to lawfully occupy a building or structure on the land.
If any of the above conditions are satisfied, you may give the other owner a notice claiming half the value of the fence as estimated at the date of the claim.
This information was gleaned from Government of Western Australia Department of Commerce
Dividing fences: a guide
Further information of diving fences
