New fence - No approval given

Hi All,

Believe I know the answer, but are we under any legal obligation to pay for this fence?
And do I have to communicate our decision?

Returned home yesterday to find our side fence completely torn down and a replacement in construction.
There was a letter in the mail from the neighbour’s real estate advising that the fence is in dangerous and very poor condition. They understand we cannot pay our half at the moment so the landlord is proceeding with the replacement and paying for the total cost. You can make repayments to … when we can.
Finally that the fencing company will be in touch..

The old fence was in good shape. This neighbour’s real estate had made verbal contact a couple of months ago, but we declined to replace it due to affordability.
They proceeded with quotes anyhow, delivered by mail but we didn’t reply.
Then the tenant later ripped a few more palings off.

 

Neighbour proceeded without authorisation. Not your problem IMHO.

 

Yes probably.

 

Wylie, I'm NSW.

The Notice to fence was received yesterday (same day the fence was torn down), my mother witnessed the Real Estate agent dropping it in our mailbox.

 

Check out the nsw laws
DIVIDING FENCES ACT 1991
http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/dfa1991137/

 

Refer: S11 Cl 5(b)

 

Thanks for the quick support, Scott No Mates and Terry W you found some solid ground for us to stand on if need be cheers.

Do i bother to contact the neighbour's real estate to decline again, this time in writing?
p.s. up to this point I haven't inconvenienced the tradies, they're just regular blokes and it's not their issue. They likely deal with similar disputes regularly. Luckily we haven't been asked for any yard access which might've implied consent.

 

Request that the agent reinstate the fence that has been removed without notice or consent.

 

s11 seems very certain. s12 which provides avenues for a proposed fence where there is no agreement is not met. Free fence. Sweet.

Consider having a solicitor send the reply to the RE agent

 

I once had a neighbour of an IP request a new fence. I went to have a look at the fence at it was fine. There were two palings that had come off so I got a handyman to nail them back in place. The next time I went out there I noticed a nice new colourbond fence down that side. Turns out the neighbour just wanted colourbond fences and wanted to try his luck that we'd pay half.

 

Issue resolved.

Rang the real estate.
They began with a blurb about my mother a few months ago mentioning that we cant afford it but maybe in 6-12 months time. So in their eyes in 6-12 we could perhaps make some payments.

I mentioned that we never agreed to it or its design/colour etc and she responded that they had contemplated taking it to court.

I threw in that S11 Cl 5(b) and the fact that notice to fence was delivered on the day, and she kindly relented that there wasn't an intention to take it to court in the end. Landlord is happy to foot the full cost just to keep his/her tenants conent as they have a kids.

Props to the landlord. I hope to be as accomodating in future if I ever have an IP. But it didn't need replacing, and when their tennant's kids play unsupervised on their driveway occasionally running onto the road (nearly reversed into one, heart-stopping-moment) it shouldn't be used as a reason.

Thanks all for your input, solved in less than a day .

Any chance we can investigate who ran into one of our cars last night?

 

I just remembered there is a further catch in NSW. If your property has a pool. The fence is governed by additional pool laws that require YOU to maintain and safeguard access to any external property and this is unaffected by age of the pool or any other pre-existing concerns. replacing a fence triggers a requirement that the fence must exceed Australian standards. ie height, footholds, gaps, things close by etc And pulling down the old fence requires temp fencing even if its a 1 hour job and more...PITA and $$$$.

You can initiate a part claim with a neighbour to replace it under the fences act but their refusal doesnt act as an excuse. The neighbour can make complaint to council if fence is dilapidated (!!) and can be costly...Council has right to enter property for a pool fence complaint.

Refusing to pay for a fence under the Fences Act may not be clever in such a case.

 

There are also the laws of equity. The courts or tribunal could still award against you because you have benefited from the new fence.

 

Yeah that would be cheap

 

It is not expensive to take someone to a tribunal.

 

I have seen the PCA approve replacement boundary (pool) fencing with rails on the neighbour's side even after I raised the issue.

 

Ooh this is lucky. We have a pool, but it is against the fence on the opposite side of the yard. With standard pool fencing around the remaining sides of it.

The real estate did mention that they had thought about taking it to tribunal (not court sorry as previously mentioned). But had decided not to.

I'm thinking they would've known about the regulations (notice and agreement etc) prior but just proceeded as the neighbour's landlord must be more fussed with keeping the tennants happy then receiving re-imbursement. Kind of makes sense as they've been there 6 years.

Those additional pool based rules do bring another element in though.

 

In NSW at least, ANY change to any part of a fence surrounding a pool forces the whole fencing surrounding a pool to now meet the present Australian Standard for pool fences, gates and surrounds. It can trigger a $10K problem in some cases. Easily overlooked and also a potential liability issue if a kiddie drowns. I looked at moving our pool fence and cant. Newer laws say you now cant use the building as a "fence"...So I would now need a new fence along one side where the house now acts as a fence.

Someone asked - Does a pool add value. Do you want mine ? Its a PITA. And removal needs an approval too