Fences and Retaining Walls: Whose Burden Is It To Bear?

March 29, 2016

Keeping your fences in good condition is essential for your own privacy and safety, especially if you have pets or children.

Fortunately, if repairs are due, you may be able to split the bill with your neighbours – but only in certain circumstances, and only to a certain value.

Nick Holden, founder and CEO of Modular Wall Systems, explains that in simple terms, a boundary fence separates two pieces of adjoining land.

“Neighbours are generally responsible for sharing the cost of a new boundary fence, particularly if the existing one is a dilapidated fence,” he says.

“However, if a homeowner wants a new fence for aesthetic benefits, the neighbours’ are not legally obliged to share the cost of installing a new fence.”

Translation: you can’t expect your neighbour to pony up half the cash for a new fence simply because your tastes have changed.

So when does your neighbour have to pay?

Determining the type of fence

First of all, you need to determine whether the structure is a fence or a retaining wall.

“The definition of a fence is broad and it includes hedges, structures, ditches, embankments and natural water courses that extend along the boundary separating the adjoining land,” explains Allison Benson from Kerin Benson Lawyers.

“It doesn’t however include a retaining wall – unless it is part of a foundation or support necessary for the support or maintenance of the fence – or a wall that is part of a house, garage or other building.”

Essentially this means that most retaining walls on your property are your responsibility to maintain.

Also note that you may need to get council approval in certain circumstances, such as when building a new retaining wall. According to Queensland building regulations, for instance, there are certain criteria you need to meet in order to avoid using a building certifier.

Agreeing on your new fence

Let’s say your fence is indeed in need of repairs, and you’ve worked out that it’s a boundary fence, meaning your neighbours are legally liable to pay for half.

However, you have your heart set on a durable new colorbond divide – but they’re happy to settle for a cheap and cheerful, basic wooden fence.

“If one neighbour is presented with an expensive option versus a cost-effective fence, he or she is only legally required to pay 50 per cent of the less expensive option. The neighbour wanting the expensive option is required to pay the difference,” Holden says.

“We always suggest keeping an open mind, listening and maintaining dialogue, for the best possible outcome for both parties. It is also worth mentioning that a neighbour under financial hardship is not obliged to pay for their share of a fence.”

Just to complicate things a little further, Holden says that ultimately, the decision on who pays for what is “at the discretion of all parties, and is often reviewed on a case-by-case basis”.

“There is no universal law to this, as each council is slightly different,” he adds. “It’s best to check with the local council regarding their general conditions on building a new fence shared between multiple homeowners.”

The information in this article is general information only and does not constitute financial or legal advice.  This does not take into account your personal circumstances and accordingly you should seek independent financial and legal advice before taking any action, or refraining from taking any action in reliance on any information contained in this article.

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