Monday, August 25, 2008

The boundary minefield - Replacing Fences

When it comes time to replace a fence, at least in Australia, there's a very clear-cut law that says owners of the property either side of that fence are jointly responsible for the cost of its replacement.

If you want to see the whole thing, go to the Department Of Land's Dividing Fences Act 1991

There's no getting out of it - if the fence is falling down and one party decides enough is enough, the other party has to pay for half of a basic replacement fence (in this case, either timber - nearly unheard of these days - or Colourbond steel, which is cheaper and more bushfire-proof). If you want something more expensive and the neigbours don't agree, you have to pay the difference between the cost of a basic fence and the swanky one.

It doesn't matter if the owner is a landlord, owner occupier, or even a Mortgagee... they still have to pay.

(Note that in the UK and the USA or elsewhere, the laws may be different - in the UK, the different sides of a fence are designated as being the responsibility of a particular property, the idea being, I think that you are only actuall responsible for maintenance of one single section of fence)

This doesn't mean, of course, that you won't have problems.

When we bought our house nine months ago, the property next door was owned by the same bloke who sold us our place. As a landlord, he'd never bothered to replace the fence between his two properties because he didn't care that they were hanging off their posts at and angle of 45 degrees, letting large dogs from one yard into the next to maul the neighbour's children... you get the picture? This guy was so lazy that when the house next door took too long to sell, he let the bank take it off him and sell it for a song and, of course, continued until then to ignore our requests for him to help fix the problem.

Thankfully the neighbours no longer had the big dog... we have a toddler!

When the house sold, however, we had a new owner who spent time and care doing the place up and was enthusiastic to replace the crappy fence. The big hold-up at that point was that the house behind (two sides actually needed replacing) was also a mortgagee reposession, and the bank was flatly refusing to take any part in the expense. You'd think they would have had more sense.

This can be a real holdup to a project if you don't quite have all you need to do the job yourself. Of course, you can do the lot and take them to court, and they'll lose, but how can you make them pay costs?

One genius friend of ours who had seen this before finally told us to slap a legal caveat on the property behind us. No-one could buy the house there unless they agreed to pay for their half of the fence!

Of course, this didn't solve the immediate problem of the cost of getting the thing replaced, but it *did* make the bank's life very difficult because it makes the property doubly hard to sell. The caveat has to be presented with any contract of sale!

We'll see how long it takes them to cave...

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