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Party Walls and Fences

Party Walls

Owning a property with a party wall comes with a specific set of obligations and rights.  We have broad experience in running this type of matter.

There are two peculiar aspects to party wall disputes.  First, the law regarding party walls is not consistent.  In Victoria alone, there are four types of party walls and each is treated differently.  To determine which category a wall falls into, you need to consider whether the wall is located on one person’s land, split between the two properties, or on an easement.  This drastically affects your rights.

The other strange feature of party walls is that any dispute must be resolved at the Building Appeals Board, where we often run matters.  The BAB has very wide discretion as to how it can resolve a dispute, and we can guide you through this process.

Dividing Fences, Trees and Other Neighbour Disputes

Bad neighbours can impact your quality of life. But going to court is not always the best solution to a dispute with your neighbour. Litigation is expensive and stressful. It can also result in long-lasting damage to your neighbour relationship.

Our team of solicitors is experienced at handling all types of neighbourhood disputes and minimising the stress involved for all parties. This involves stepping into your shoes and developing the most appropriate strategy having regard to a range of factors, including:

Your goals

The most important factor is you and your personal goals. Once we understand your goals, we begin to develop the most appropriate strategy to achieve the outcome you want.

Your neighbour

The personality and circumstances of your neighbour will also influence the approach to your dispute. Some neighbours might respond positively to friendly correspondence, whereas other neighbours may require a more assertive approach to achieve your desired outcome.

Your costs

Lawyers are expensive. However, we minimise your costs by working with you to develop the most cost-effective approach at the beginning of your dispute. We then provide regular updates in relation to estimated costs as your matter progresses.  It is up to you to choose your most preferred pathway having regard to your goals and budget.

Patrick & Associates has experience in a range of neighbour disputes, including the following common issues:

  • Dividing fences between houses
  • Party walls
  • Trees and encroaching branches
  • Protection works
  • Noisy neighbours
  • Dangerous pets and damage caused by pets
  • Trespass or damage to your property

Dividing fences between houses

If you are the owner of a property, you and your neighbour share equal responsibility for the dividing fence between your properties. A “dividing fence” separates two pieces of adjoining land. It generally runs along the common boundary but not always. For example, if there’s an object on the common boundary and the parties agree to build around it.

Fencing disputes often involve the following issues:

Who pays?

You and your neighbour are required to contribute equally to a “sufficient” dividing fence.  Whether a dividing fence is sufficient depends on a range of factors, including privacy concerns, the purposes for which the fence is required, and the types of dividing fences used in your vicinity.

What if my neighbour wants an expensive fence?

You are only obliged to contribute equally to a sufficient dividing fence.

If your neighbour wants to build a more expensive fence, then they will have to pay the difference in cost between a sufficient dividing fence and the higher standard.

Notices that you need to give

If one of the parties wishes to build (or repair) a dividing fence, and the other party does not agree, then the processes set out in the Fences Act 1968 (Vic) must be followed. The first step is to give your neighbour a fencing notice that requests their agreement to the proposed fencing works.

It is important that you obtain legal advice during this process to ensure you are following the correct legal procedures.

How to resolve a disagreement about the proposed fencing works?

If a party does not agree with a fencing notice, they can either negotiate an agreement or wait 30 days from the date of the notice and go to the Magistrates’ Court. The Magistrates’ Court will determine whether works are needed, and if so, the standard of fence required and each party’s contributions to its construction.

Going to the Magistrates’ Court is expensive and time consuming. It can also be very stressful if you are not represented by lawyers. We suggest you attempt to negotiate an agreement with your neighbour before you engage any lawyers.

If you reach an agreement with your neighbour about proposed fencing works, get the agreement in writing and signed by all parties. If the agreement is made orally, you should send an email to your neighbour confirming the important details of your conversation.

If you can’t reach an agreement with your neighbour, then you will need to follow the processes outlined in the Fences Act 1968 (Vic).

Tree roots and overhanging branches

Property owners are responsible for their trees and any damage to a neighbour’s property. This includes overhanging tree branches or tree roots that grow into a neighbouring property.

If a neighbour’s tree is encroaching onto your property, you should consider the following options:

  1. Engage in informal discussions with your neighbour to arrange for the removal of the encroaching tree branches or the tree roots.
  2. Gather expert reports. You may need an expert report to show that your neighbour’s tree is causing (or about to cause) damage to your property. This includes arborist reports, dilapidation surveys and opinions from plumbing experts.
  3. Self-help remedies. If a branch from your neighbour’s tree is overhanging your fence, you are legally allowed to cut-off the overhanging branch and place it on your neighbour’s side of the fence, subject to the tree’s health not being affected. However, you should discuss this with your neighbour before you take this course of action, or obtain legal advice.

Protection works

Your neighbour is entitled to carry out building work on their land.

However, if that work has the potential to cause damage to your property, then your neighbour will usually have to follow the processes under the Building Act 1993 (Vic) in relation to protection works.

For example, your neighbour must usually consult you about the proposed works and any other actions that will be undertaken to protect your property during their building works.

Neighbours should be wary of the protection work regulations particularly if building works involve excavations, changes to footings, or where the building work is adjacent to boundary walls.

The relevant building surveyor (RBS) plays a central role in the consultation process and ensuring that proposed protection work is adequate. The RBS must act independently which is a vital to the protection work process.

There are procedures which allow owners and adjoining owners to appeal to the Building Appeals Board against decisions of the RBS. The Building Appeals Board can also determine certain disputes between neighbours in relation to protection work matters.

Loud and noisy neighbours

Loud noises from neighbours are a common source of disputes.

The best approach is to talk to your noisy neighbour and agree on a solution to the problem. You may feel anxious about approaching your neighbour, however it is important to remember they may not even be aware that they are disturbing you.

If no solution is agreed, there are other avenues you can explore, including:

The Police

Victoria Police and Council officers can issue directions against offenders to stop unreasonable noise. A direction can remain in force for up to 72 hours and failure to comply with the direction can incur instant fines.

The Council

Your local council can take action under the nuisance provisions of the Public Health and Wellbeing Act 2008. Councils are obliged to investigate noise nuisances, however, in practicality it is often difficult to compel your local council to assist in your dispute.

The Owners Corporation (formerly Body Corporate)

If you live in an apartment or unit complex, then you should raise your noise complaint with your owners corporation (formerly body corporate). Check if other neighbours are having the same issues and whether they can help you strengthen your case.

The Residential Tenancies Act 1997 (for tenants and landlords)

Under the Residential Tenancies Act 1997, residential tenants and landlords must avoid disturbing the peace and comfort of neighbours. If you are a tenant or landlord, you should seek legal advice to see if there is a course of action available to you under the Act.

The Dispute Settlement Centre of Victoria

You can also use the Dispute Settlement Centre of Victoria’s free and confidential dispute resolution procedures, including their mediation service.

Our team of solicitors are experienced at dealing with noise complaints and other nuisances by adjoining property owners.

Dangerous pets and damage caused by pets

There are many laws affecting pets that are made by local councils. For example, councils have the power to decide the types of animals that can live on your property, and the quantity of those pets.

If you own a pet, you are responsible for its behaviour. This includes:

  • any damage that your pet causes. For example, if your pet wanders onto a road and a car subsequently suffers damage; and
  • any attack your pet makes on another person or animal. The penalty for the attack will depend on the seriousness of the attach, and whether your pet has attacked before.

The consequences of wandering pets can be severe, and even lead to the seizure and destruction of your cat or dog by your local council in certain circumstances. You may also be personally charged for an offence under the Domestic Animals Act 1994.

If you are having issues with your pet, or a neighbour’s pet, contact us to discuss your options in detail.

Trespass or damage to your property

A person is only allowed on your land while they have your permission. If you withdraw your permission, the person must leave immediately otherwise they will be deemed a “trespasser”.

Your neighbour has no right to come on to your land without your permission (even to retrieve an item). Any person who enters your land without your permission is a trespasser and you can sue that trespasser for any damage they cause.

If your neighbour makes you fear for your safety

If a dispute with a neighbour escalates and you fear for your safety there are laws in place to protect you. These include personal safety intervention orders and other court actions.

You should contact the police or a lawyer immediately if you are feeling threatened.

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