Fencing bully

I recceived a call to ring xxx urgently regarding side fence at one of my properties. They are building a new house next door. Builder started in immediately saying he had cleared it with my tenants and they were ok with him pulling down the fence as long as he put up a temp fence to keep their dog in. Then went on about fence nearly finished but being held up by a big tree of mine hanging over and I should immediately engage a tree surgeon to cut it out. This is a thin little pitostorum mind you, practically a bush. Then he said what was my email so he could send me a bill for half and how soon could I get the tree cut down. I was absolutely livid and told him what I thought of his high handed attitude and sent an email to the re for the tenants to say they should never speak to him on my behalf. they sent back that they had never agreed to anything on my behalf and this builder had been quite a pain with blocking their driveway and other things. So he is obviously a bully ad a fibber. I feel really aggrieved I wasnt able to go and assess the fence and believe it is my right to get 3 quotes to put this fence back (which wasnt that bad by the way) what do you think?

 

Tell him to put the fence back exactly as it was or you'll be seeking legal action.

 

1st, all contact and communication in this matter should all be via email moving forward to keep a paper trail.

If the builder/neighbor did not provide you with notice to fence prior to any works tell him he has no right to request any payment from you, as the adjoining land holder/owner you did not agree (or authorize anyone to act on your behalf) to any works or the removal of a previously good functioning fence !

Is the new fence actually on the boundary ?
Is the new fence a standard timber palling fence ?
Because if they removed an existing fence why would your tree suddenly be in the way, unless they moved the boundary or built tbe new fence excessively high .......

Assuming it isn't to far away I'd be going over and taking pictures from the footpath asap (remembering you can't go onto your IP without correct notice period).

 

FENCES ACT 1968 - SECT 12
Owners must not undertake fencing works unless in accordance with an agreement or otherwise in accordance with this Act
(1) An owner of land must not undertake fencing works or any subsidiary works unless the works are carried out—


(a) in accordance with a fencing notice agreement; or

Note

Section 3 defines a fencing notice agreement as an agreement between owners of adjoining lands, or owners of adjoining lands and long-term tenants, about proposed fencing works and any subsidiary works to be undertaken, that is reached after a fencing notice has been given to one of the owners.

(b) in accordance with an order of the Magistrates' Court; or

(c) otherwise in accordance with this Act; or

(d) in accordance with another agreement between the owners of adjoining lands.

(2) If an owner of land carries out fencing works and any subsidiary works that are not works carried out as provided for in subsection (1)(a), (b), (c) or (d), the owner of the adjoining land may file a complaint in the Magistrates' Court seeking an order under section 30C.

 

The builder is moving the boundary line.

You can right of adverse possession. That means , your land is until the fence line.

He wants you to cut the tree and move it across.

Hire a lawyer immediately

or call fencing Victoria.

 

FENCES ACT 1968 - SECT 30E
Adverse possession claims arising from fencing disputes
(1) A person may file a complaint in the Magistrates' Court under this section claiming title by possession to a part of adjoining land to the land that person owns if—

(a) the land that person owns is land in respect of which a complaint is filed under another provision of this Act; and

(b) the land that the person is claiming title by possession to is land on which fencing works and any subsidiary works that are the subject of that complaint are to be carried out.

(2) The Magistrates' Court may make an order in relation to who is entitled to title by possession of that part of the adjoining lands on which the fencing works and any subsidiary works are to be carried out.

(3) Nothing in this section affects the operation of the Limitation of Actions Act 1958 , the Transfer of Land Act 1958 or any other law in relation to adverse possession.

Note

A person who claims title by possession to land may apply to the Registrar under the Transfer of Land Act 1958 for an order vesting the land in that person.

 

Take a deep breath.

If the fence was adequate then you do not need to pay for half. If the fence has been removed by the builder, then they should rebuild it at their cost.

If they have photos showing that it was half falling down and your REA condition report photos back that up, then you would usually be liable for half of an adequate standard fence.

In normal circumstances - where the builder hasn’t taken things into their own hands, that is.

But, even then, I would expect them to pay for it as part of the development!

 

I don’ think that is what the OP said.

 

My son has been to have a look and not only has he nearly finished the fence he has built it extra height in colorbond which I hate. Not only that but it doesn't match my other fence. I cannot believe the arrogance of going ahead without any discussion and he has built it right up to 3 small trees I have on the fenceline which are on my side of the fence and just demanded I have them cut down

 

18 years ago I had a side fence at my PPOR rot away and fall over
The neighbors fig tree used to drop fruit on the timber rails, causing it to rot away.
.
I contacted the neighboring IP owner via email, had photo's of the rotten fence and 3 quotes for a standard timber fence (they even attended the property to view it), I stated that I desired a colorbond fence, they agreed to the fence via email, but only for 50% of the cheapest quote

When I organised and sorted the new fence it was colorbond and I also put a 3" wide concrete footing under the entire length of the fence so no grass would grow under it and cause it to rust, best fence ever and it still looks great today

As I'd organised it all I was liable for it all and I ended up paying for it all

Even though I had an extensive paper trail of emails and their agreement to replacing the fence, I hadn't proved ded "NOTICE TO FENCE"

They never paid a cent

Tried legal action, when the cost got to what I was owed I gave up

 

As a wild guess, he was required to replace the fence as a condition of the DA. You shouldn't be contributing in any case for the reasons provided especially if they haven't provided fencing notices, quotes etc.

 

How much land have you lost.

Do you have a re-establishment survey done?

 

Insist they make good?
As in same colour and height.
I hope this helps

 

My worry now is it looks like he might have installed this over onto my land by about 100-150mm as the fence now runs into trees which were were on my side. He has installed the whole fence right up to the trees. What happens if now there is not one metre between my house and the fence? Would that make my house illegal or would it be alright because that where the original fence was?

 

Distance is measured from the surveyed boundary not the fence line.

 

Victorian law was changed in 2014 by the Fences Amendment Act and constructing a fence without seeking neighbouring consent may be illegal and the fence may need to be removed and replaced with the standard that existed prior. Old law didnt address this. The new law seeks to ensure parties agree prior to fencing except where it is urgent (a build site would not be) or the land owner cant be contacted but that is also complicated with a 30 days requirement which wasnt met it seems. The reasoning is that prior agreement reduces disputes. You may be able to seek magistrate court orders on several grounds. The court registrar may be able to guide and provide limited advice on process without needing a solicitor.

1. You were not asked for approval or involved in any way in the fence choice and its position and would not have consented and a fence dispute would have required mediation had the process been followed
2. The 30 days "location of the owner" requirement was not complied with
3. They have incorrectly sought payment and the standard of fence is beyond what would be a fair liability IF the process had been followed. You assert that the existing fence was acceptable and your contribution should be $0 and as the fencing requirements were not complied with you also dont consent to pay
4. The fence position based on an agreed survey that both land owners may need to share in the cost for
5. The fence height, materials and colour
6. Restitution of the former fence materials and in the former position.

Fencing law in Victoria

 

So did you attend site ?
Did you take pics to compare with previous pics ?
Maybe the developer had a survey done, any new markings on the footpath/kerb ?