Property Lines, Fences & Trees

Date: Jan 02, 2010
Document Type: Newsletter

In Australia, most of the laws that govern property boundaries are determined by state legislation and vary from state to state. Fencing regulations often vary between local, shire and regional councils. Housing estates or residential communities may also have specific regulations about fencing. For up-to-date information, it is advisable to contact your local council or a solicitor in the state where the property is located.

How do I find the exact Property Lines for my property?

Your land title documents will show property boundaries. These are produced by surveyors for the Department of Natural Resources in your state. Although these are accurate documents, they can be difficult for a lay-person to interpret. For a more detailed understanding of your property boundaries you may need to consult a licensed surveyor.

Fences

Fences between neighbours and fences that create a boundary with the street often have differing requirements. Consult your solicitor to be sure about these standards before ordering your fencing.

In NSW, if an owner wants to erect a dividing fence or wants work done on an existing dividing fence, the Dividing Fences Act 1991 addresses how the cost of a dividing fence is shared. The Act sets out the minimum requirements; owners may agree to arrangements exceeding these requirements. The Act also sets out the procedure for resolving disputes over the cost, type and position of a fence.

Before you begin building the fence, you should give your neighbour written "notice to fence". The notice to fence must have information about the boundary you will build on, the kind of fence you want to build (height), the cost of the fence, how the cost will be paid, and who will do the work. It is advisable to get several quotes and to understand options about materials, who will get the flat side, if the fence will be lapped, and if other neighbours will be affected by the project.

Keep a copy of the notice for your records. Your neighbour has a specific time to respond. For specific details in your state contact your solicitor.

Disputed Boundaries

If a neighbour starts to build on what you think is your property, it is wise to act on the issue promptly. Even minor encroachments can cause serious and time consuming problems when you come to sell the property. Inaction can, over time, result in property loss. When land is used in a certain way for an extended period, it can gain legality for continued use and, in some circumstances, ownership of the property is forfeited.

Talk to your neighbour immediately or enter mediation before structures, such as fences or sheds, are erected on disputed land. If the issue can’t be resolved through discussion or mediation, it is best to consult your solicitor.

Overhanging Branches and Trees

Overhanging branches and roots constitute a legal nuisance. The owner of the land on which the tree grows is liable for damage caused and you may cut branches that overhang onto your property provided the tree is not damaged. The overhanging branches and fruit belong to the owner of the tree. A tree owner may also be liable under the ordinary principles of negligence.

However, as some trees are protected and regulations differ from state to state, consult your solicitor for specific advice on problems created by trees.

Protected Trees

Many councils have tree preservation orders and also significant tree and heritage tree registers, with restrictions and guidelines on the amount of lopping, trimming and pruning that can be carried out. Some councils require permission before a tree can be lopped. It can be an offence to cut or damage these protected trees.

The roots of a tree, even a protected tree, can be a nuisance, particularly when they damage an adjoining property. Trees can also become traffic hazards. If your tree falls and injures somebody, either on the road or on a neighbour's property, you may be liable for negligence.

Local councils may order trees to be removed or trimmed if they present a public danger. Consult your solicitor if you require specific advice on problems created by trees.

Compulsory Land Acquisition
Date: Aug 03, 2010
Consideration in contract law
Date: Jun 10, 2015
Contract: the rules of the game
Date: Jun 15, 2015
Getting it straight with strata
Date: Mar 02, 2011
I don't want to get gazumped
Date: Oct 07, 2010
Insurance is so confusing
Date: Apr 03, 2010
Just what is strata title?
Date: Aug 03, 2009
Leasing a Commercial Property
Date: Nov 01, 2009
Leasing a Shop
Date: Oct 03, 2009
Let the lender beware
Date: May 02, 2009
Mortgage Stress
Date: Apr 02, 2009
PPSA Protection and Perfection
Date: May 25, 2015
Property Lines, Fences & Trees
Date: Jan 02, 2010
Renting a home
Date: Sep 02, 2009
Requisitions on Title
Date: Sep 10, 2011
Security for Costs
Date: Aug 08, 2010
Trusts and family law disputes
Date: Jul 06, 2015
What Exactly is Conveyancing?
Date: Jul 02, 2009
What is a mortgage?
Date: Dec 02, 2009
What is property?
Date: Feb 02, 2010
What on earth is an easement
Date: Jun 02, 2009
When should I make a will?
Date: Mar 01, 2008
Back to Publication List