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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5357
Experience:  Dip Law LPAB - Sydney based lawyer
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Re neighbours and adjoining fences. 1. my neighbours tree

Customer Question

re neighbours and adjoining fences.
1. my neighbours tree uprooted and pushed one of my trees over which uprooted our shared fence- are they responsible for the full cost of repairing the fence and are they entitled to have the wood from their tree [which is now in my property] back?
2. if i want to extend the height of an adjoining fence [reasons being a-wildlife keeps coming over from neighbours side & b. wildlife breaks wires on my fence & c. one of my dogs is at risk of getting over the fence as he hates the neighbour as the neighbour used to stand there and taunt him]
am i the only person responsible / obligated to pay for the height extension because it's my preference or are all/both neighbours responsible irrespective of the reason?
3. if the neighbours are obligated to share costs how do I recover the costs if they do not provide voluntarily ?
thanks
gina [in victoria]
Submitted: 3 months ago.
Category: Australia Law
Expert:  Patrick H. replied 3 months ago.

Hello and thank you for your question.

The law in relation to fences is governed by the Fences Act:

http://www.austlii.edu.au/au/legis/vic/consol_act/fa196867/

Part two of the Act sets out when parties have to contribute to the costs of fencing, and essentially the law is that neighbours have to contribute equally to a sufficient dividing fence, but that if one neighbour wants something more than what is sufficient that neighbour has to pay. What is sufficient is a subjective question that will depend on the circumstances and is a matter for negotiation and by reference to other dividing fences between similar properties. It is not enough to simply say that wildlife keeps coming over from the other side.

On the other hand, repairs for damage to your property or to a dividing fence that is caused by the neighbour's neglect or the neighbour's animals will usually be payable by the neighbour responsible for the neglect. Neglect can include failing to prevent tree roots from a tree on your property from intruding into a neighbour's property or from damaging the adjoining fence. In your situation where you are asserting that their tree roots uplifted one of your trees which in turn damaged the fence, then you would be right provided you can prove that the real cause was their tree, however, that may be difficult to prove in the case you describe.

If after reading the above you believe the increased fence side is reasonably necessary so as to be merely a sufficient fence, then the Act sets out the procedures for claiming a contribution from the neighbour, but if they resist you may find yourself having to apply to the court.

Similarly in terms of the cost of repairs or damage to the fence and your tree, you need to either negotiate some compromise or apply to the Magistrates Court.

Unfortunately the processes will generally require the assistance of a lawyer as the law of negligence and nuisance, as well as that set out in the legislation will all have potential application and these are not matters that can be comfortably addressed by a person untrained in the law.

The following article from the Victorian Law Handbook may also assist your understanding.

http://www.lawhandbook.org.au/06_04_05_fences/

Good luck and please rate my answer.

Patrick

Customer: replied 3 months ago.
re the bit where you said 'it's not enough to say that wildlife is coming over from the other side':
+the wildlife coming from their side damages the / our sharedfence,
+ the wildlife also pick fights with my dog and lure him over into the neighbours property [to try to drown him];
+when the kangaroos have broken the fence my dog gets out into the neighbours property and the neighbour calls the council and i keep getting finedgiven the problem stems from their side how is it that the neighbours do not have to contribute to a solution that prevents the roos coming in/breaking fence and enabling my dog to escape?thanksGina
Expert:  Patrick H. replied 3 months ago.

Hello again,

When you say wild life do you mean animals owned by your neighbour or wild animals?

Customer: replied 3 months ago.
wildlife as in kangaroos who come from/through the neighbours property; one particular herd has been coming over the dividing fence from that house on a regular basis and go back into their property - in the process they break the fence every time which disconnects the wiring for the dog containment system and then my dog gets out into the neighbours property chasing the kangaroos.....
Customer: replied 3 months ago.
HI Patrick
I responded to your question regarding the wildlife can you please get back to me on that
Thanks
Gina
Expert:  Patrick H. replied 3 months ago.

Unfortunanetly neighbour's will not generally be responsible for the behavior of wild animals unless they are actually doing something to encourage the animals damaging behavior, such as luring them onto the property with food or similar actions.

It does raise issues as to whether the fence in question is adequate and you could therefore consider legal action to apply to the court for your neighbour to contribute to an improved fence.

It also raises the issue as to whether your neighbour is adequately maintaining his other fences so as to prevent wildlife getting onto his property in the first place, but it is not easy to predict how a court will decide such matters as it will largely come down to what the magistrate considers is reasonable in all the circumstances.

Good luck and please rate my answer.

Patrick