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 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.
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.
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.