VIC Fences Dispute with Neighbour - Who is Liable?

[zilla1]

Re: Fences Act 1968, Part 2, S9 Owners damaging a fence

I have a fences dispute with the property manager of a unit block. We share a boundary brick fence 7m long, confirmed by my structural engineer. The fence has been irreparably damaged by the vehicle clearly in the unit car park.

Their car park (4 parking slots) is not secured, nor gated. The entire boundary fence is now a hazard to life, risks falling into my property, and needs demolition and replacement, currently sitting detached from its footing and shunted a small distance into my property.

In my emails to resolve with the neighbour, they have refused to contribute greater than 50% for fence, without giving reason.

Fences Act 1968. part 2 section 9. clearly states that the damaging neighbor is entirely responsible for costs. They have sent me a Fence Notice and the dispute is heading towards Magistrates Court.

What component of property law dictates I am liable of 50% of costs, after the damage inflicted from the neighbour's side of the boundary fence? Are they able to deny responsibility if the damage has been clearly caused from their side?

Is that property management not 100% liable for activity and damage caused by an occupier of their property, whether it is consented or not within their property?

 

[Rod]

Normally when replacing a fence at the end of it's life each party goes 50/50 for a standard fence.

If someone damages property, they are responsible for paying for the damage. However they only need to pay for repair if the fence is repairable, not a whole new fence. If the fence is repairable you do not get to insist they pay for a totally new fence.

Need to look at your circumstances and the actual damages and the previous state of the fence to work out what is reasonable. Negotiating an agreement may be better than going to court.

 

[zilla1]

Hi, thanks for your reply - that was what I was thinking however as per my structural engineer's report, the fence is irreparable. I would trust his opinion on this. His report also identifies the significant lateral movement of the upper portion of the wall, separated from the footing, towards my property. This is for the greater portion of the 7m length with remainder of the wall in a very questionable state.

I have photographs of it in a previous state and there is no damage to the wall whatsoever.

This neighbouring property is DHHS housing commission - are there any laws that allow them to behave this way? I have checked their land title and the property is not Crown Land, despite being managed by DHHS (the government). Unless I am mistaken, they are therefore still subject to the same laws and Fences Act, Section 9, right?

 

[Rod]

Not necessarily straightforward being a State government department. They may not be liable under the Fences Act, see s 31. I don't know enough to say whether this qualifies as an exception.

Is DHHS renting the units from a private owner? Might be easier going after the owner of the property. You may need a lawyer to work out who to sue and in what court/tribunal.

 

[Rod]

And under which law.

 

[Matthew Karakoulakis]

Re: Fences Act 1968, Part 2, S9 Owners damaging a fence

I have a fences dispute with the property manager of a unit block. We share a boundary brick fence 7m long, confirmed by my structural engineer. The fence has been irreparably damaged by the vehicle clearly in the unit car park.

Their car park (4 parking slots) is not secured, nor gated. The entire boundary fence is now a hazard to life, risks falling into my property, and needs demolition and replacement, currently sitting detached from its footing and shunted a small distance into my property.

In my emails to resolve with the neighbour, they have refused to contribute greater than 50% for fence, without giving reason.

Fences Act 1968. part 2 section 9. clearly states that the damaging neighbor is entirely responsible for costs. They have sent me a Fence Notice and the dispute is heading towards Magistrates Court.

What component of property law dictates I am liable of 50% of costs, after the damage inflicted from the neighbour's side of the boundary fence? Are they able to deny responsibility if the damage has been clearly caused from their side?

Is that property management not 100% liable for activity and damage caused by an occupier of their property, whether it is consented or not within their property?

Hi Zilla1,

The manager of the unit block is being unreasonable and threatening your property and safety. You have not damaged the fence and should not bear responsibility.

I can provide you with the legal advice and representation that you need about the fence being repaired by the government. I can advise you about the exact ownership of the property, interpret the legislation, provide you with legal representation and negotiate with the property manager/government if that’s what you need most?

Please feel free to contact me via the link Matthew Karakoulakis, Lawyer, AMK Law - Melbourne, VIC - LawTap - Find a Lawyer & Book Online Instantly to arrange an appointment to discuss the matter further.

Yours faithfully,