This factsheet is designed to help Tasmanians with some of the issues you may be facing when your property has been damaged by a natural disaster such as a storm, flood or bushfire.
My fence was damaged because of a natural disaster. Who pays to repair or replace the fence?
In Tasmania, the Boundary Fences Act 1908 (Tas) applies to disputes about fences. Under the Act you have to give a notice to your neighbour and follow a particular procedure before you are entitled to recover any money paid for a dividing fence.
If your fence was destroyed or damaged by flooding or a storm, this is considered to be accidental damage or destruction. In this situation you can repair the fence by giving the owner of the adjoining land 7 days notice (see s.24(1) of the Act). You may then repair the damage or renew the destroyed fence and recover half the cost of doing so from the owner of the adjoining land within 12 months.
If your fence was damaged or destroyed by fire and the fire originated from the adjoining owner's property you can request they repair that damage immediately. If they neglect to do so, you may repair the fence and recover payment from the adjoining landowner within 12 months.
However, unless the fence needs to be repaired immediately to protect the property, or there is some other urgent reason the fence must be repaired immediately, it is often good practice to talk to your neighbour and attempt to reach an agreement before beginning this process.
Your local council may have restrictions about the type of fence you can build, e.g. the fence height. Check with your local council about any restrictions before proceeding.
I want to replace a fence that was washed away in a flood, or repair a fence that was damaged by floods or bushfire. What should I do?
Before the fence is built you should:
- discuss your plans with your neighbour;
- reach an agreement about the fence type, cost, and the boundary to be fenced;
- put any agreement you reach in writing.
The owner of the adjoining property is responsible for repairs to an existing fence or replacing a new fence, not a tenant.
Both neighbours are responsible for the cost of erecting or repairing a boundary fence. If you want your neighbour to help out with the cost, you must serve on them a notice to erect or repair a fence. This form can be found in Schedule 1 of the Boundary Fences Regulations 2008. To serve this notice you can give it to your neighbour by handing it to them, or send it in the mail. If you put up a fence or repair one without serving the proper notice on your neighbour, or without any verbal or written agreement having been made between you, your neighbour cannot be forced to help out with the cost.
The notice to fence should contain the following information:
- where the fence will be built (the boundary);
- the type of fence you want to build and the materials you want to use;
- a plan for the fence;
- the cost of the fence and how the cost will be paid (it is probably best to get two quotes about the costs);
- how the work on the fence will be done.
You should keep a copy of the notice for your records. The adjoining owner has 21 days to respond to the notice.
I cannot reach agreement with my neighbour about whether the fence should be built or the type of fence needed. What should I do?
If your neighbour does not agree with your proposals for erecting or repairing the boundary fence, including the type of fence to be erected, they can object.
To do this they must put their objection in writing, stating what they do not agree with, and serve it on you within 21 days of having received your original notice.
If, after 30 days of serving your notice, you have not received an objection from your neighbour, you may go ahead and erect or repair the fence and then recover half the cost from them, within 2 years of the date the fence was completed, together with interest.
If an objection has been made and you cannot resolve the dispute, the arbitration provisions (Part IV) of the Act apply.
Arbitration is a form of alternative dispute resolution and is conducted prior to the parties taking their dispute to a court. An arbitrator is an independent person who determines a dispute between parties. The arbitrator is chosen by the parties, or at least, accepted by them. The decision of an arbitrator is called an award. The parties going to arbitration agree to be bound by this award.
Mediation may assist the parties to the dispute to come to their own resolution. Any resulting agreement should be put in writing and signed by all interested parties, however, such an agreement may not necessarily be legally binding. The decision or award of an arbitrator is legally binding.
Contact the Legal Aid Commission of Tasmania on 1300 366 611 for a referral to an arbitrator.
How can I make my neighbour share the cost of building the fence?
Both neighbours are responsible for the cost of erecting or repairing a boundary fence. If you want your neighbour to help out with the cost, you must serve on them a notice to erect or repair a fence. These forms can be found in Schedule 1 of the Boundary Fences Regulations 2008.
To serve this notice you can give it to your neighbour by handing it to him or her, or send it in the mail. If you put up a fence or repair one without serving the proper notice on your neighbour, or without any verbal or written agreement having been made between you, your neighbour cannot be forced to help out with the cost.
My neighbour is disputing where the boundary between our properties is. What should I do?
You should get legal advice about the dispute. You should also consider having a surveyor survey your property to determine where your property boundary is located.
If I pay for the entire fence, do I need my neighbour's permission?
No, you do not need your neighbour's permission to build a new fence either on your land or on the boundary. However, it would be good for neighbourhood relations to let your neighbours know of your intention to build a fence if you are prepared to pay all the costs connected with building the fence.
The fence has been built, but the neighbour won't pay. How can I get them to pay the costs as agreed?
If there is a dispute between you and your neighbour about payment, you should try to reach an agreement. If this is not possible, then you are required to refer the matter to arbitration.
If an award has been made in your favour and your neighbour still refuses to pay then you are entitled to sue the neighbour in court. All moneys recoverable under the Boundary Fences Act 1908 may be recovered in a court of competent jurisdiction from the person liable to contribute to the cost.
Choosing the appropriate court will depend on whether you are simply enforcing an award, the amount you are seeking and whether there is a dispute. You should get legal advice.
The bordering property is owned by the government or a property developer. Do they have to contribute to the fence cost?
The Act applies to all land with the exception of unoccupied Crown land, public reserves, any roads which remain the responsibility of a local council, or land owned by the Forestry Corporation.
Also, the provisions of the Act do not apply to any unsold land which adjoins land already owned by one person [section 71B(a) Conveyancing Law & Property Act 1884]; for example, separate parcels of land contained in a subdivision, which have not yet been sold to individual purchasers.
Can I go onto my neighbours' property when building or repairing a fence?
If there is no possible way to erect or repair the fence from your side of the boundary, then you, or tradesmen or labourers you have engaged, may go onto your neighbour's land to do this. Entry must be at reasonable times while the work is being completed.
If your neighbour's land is a crop, garden, orchard, plantation or shrubbery then you must get their permission first.
If you damage your neighbour's property while doing the work, either on purpose or accidentally, then you will have to pay compensation to your neighbour for the damage caused.
I am a tenant of a property with a damaged fence. What do I need to do?
If you are renting and your neighbour sends you or delivers to you a Notice to Fence, you should let your landlord know.
It is the owner's responsibility for the cost of erecting or repairing a fence, not the tenant.
I am a farmer, what are my responsibilities?
When a farm shares a property boundary with a residential property, a farmer only needs to pay for half the cost of the fence.
Are fences included in my insurance cover?
This depends on your policy type and location. For example, your policy will differ depending on whether it's for a home or a farm.
If fences are included, the money you receive will depend on the policy's terms. It may not cover all the costs of replacing or repairing the fence. You should check with your insurer about your policy's terms.
This factsheet has been adapted from the Queensland Government publication 'Has your fence been damaged due to flooding?'