VIC Fencing Dispute - Tricky Situation?

[Mike Love]

Hi,

We recently tried to get our neighbour to pay for half of the standard fence that we needed to replace the old fence with. We did a subdivision on our block, the lady next door didn't like it, so refused to pay for her share of the fence.
We provided her with quotes, and she still refused. So eventually, we had to get it done, so we paid for it all, and are still trying to get her to contribute.

She employed a lawyer to avoid paying us anything - made up lies that we never provided her with quotes etc. and also stated that we told her she didn't have to pay at all!

While we didn't give her an official "notice to fence", we did talk to her about the fence before we built it and gave her the quotes.

Her lawyers have been sending me replies to my requests for money, saying that since we didn't give her a "notice to fence" she is not liable for any costs whatsoever.

Here's the tricky bit - we thought that since we paid for the whole fence, it is ours, and told her that we would be happy to remove the fence (temporary fence) and go through the correct procedure, serving her with the notice to fence, and then rebuild the fence, with both of us paying half.

(As crazy as it sounds, it would save us money as our fencer would reuse all the same materials that we have already paid for)

Her lawyers said that she doesn't give permission for us to remove the fence.

Question: Is it our fence to remove, as it was only a "temporary fence"?
Or once it's up, is it half hers, even though she didn't contribute towards it?

Also, her lawyer said in the letter "they are putting me on notice that she wants no further correspondence in relation to this matter as it is now closed".

They cannot just "close" a matter, if I am still disputing it under Property Law, can they?!

 

[Rod]

Sounds like she has done the 'dirty' on you.

Write back to the lawyer, not her. It will end costing her more to fight this with every letter you send to her lawyer.

Always be polite polite and reasonable in your letters to her lawyer that she pay her fair share of a fence as required by law. Quote the relevant law to them.

BTW, if you forget something in a letter, be sure to send another letter/email explaining that you forgot to add this new point.

You might want to point out that if you have to engage a lawyer to enforce your rights, then you will be applying for cost orders in addition to half the fence.

 

[Owens Lawyers]

Hi Mike,

You are right. This is a tricky situation. The Fences Act requires a fencing notice, written or in print, to be served on the neighbour, and if after one month no agreement can be reached, either party can apply to the court for an order. There seems to be nothing in the Fences Act that allows a fence to be built without an agreement or court order, in terms of recovery of a contribution, unless an original fence was destroyed by accident.

Section 32 of the Act allows a person to enter adjoining lands to build or repair a dividing fence, but it doesn't seem to apply to someone who wants to pull down a fence.

As unfair as it seems, it may be that you have to consider carrying the costs of this fence. If you try to remove it, you may be committing a trespass, and you can be sued.

As for the lawyer closing the matter, they can certainly stop replying to your correspondence. If you did continue to send letters directly to the neighbour, or continue to verbally ask her to pay for her share, she could try to make an argument that she is being harassed and intimidated, and apply for the Victorian equivalent of a Apprehended Personal Violence Order. I'm not saying this would happen, but neighbour disputes can sometimes escalate and get out of hand.

If you believe that the current fence is not sufficient for the purposes of you and your neighbour (and note, sufficient does not mean your preferred type of fencing) then you could start the process again, that is serve a notice to fence and wait one month before applying to the court for an order. Sufficient is not defined in the act, so you may need to seek advice from a Victorian lawyer with some experience in fencing matters to get some idea about how sufficient the current fence is. I would be concerned that if you began court proceedings where the existing fence is sufficient you may be up for your neighbour's legal costs.

 

[Mike Love]

Thanks for your reply Owens Lawyers.
In regards to serving the neighbour with an original "notice to fence" - I didn't give her an official notice, however, did give her several quotes and talk about sharing the cost. I was under the impression that the notice doesn't have to officially state "Notice to Fence". Are providing her with quotes enough to serve as the same thing?
And there is no question that the fence is sufficient. It is an excellent fence. However, I am claiming that the fence was just a "temporary" fence while we sort out the finance dispute. If we pulled down the fence by not entering her land, then would this be permissible?
Also, I wasn't going to send the owner letters - but can I still send the lawyer correspondence arguing this, as futile as it may be?
And can her lawyer decide to take me to court if her legal bills get too large, in an attempt to make me pay for her bills?
Thanks again!