Property 101: South Australia fencing, boundary and encroachment disputes

Fences between neighbouring land should be located on the boundary but many aren't precise.

This doesn't change the ownership of the land and doesn't matter if both you and the neighbour can accept it. There is no legal requirement for a fence to be erected between neighbouring land.

Regardless of whether the fence sits precisely on the boundary or not, it is still jointly owned by both of you. Even if you plan to pay for the entire cost of repairing, replacing or erecting a fence yourself, you must get the consent of the owner of the neighbour land to:

• remove an existing fence 
• repair or carry out maintenance work on an existing fence 
• erect a new fence 
• enter their property to carry out work on the fence.

Although a fence is considered equally shared there is no legal obligation for your neighbour to contribute towards the cost of repairing, maintaining or erecting a fence unless:

• they have agreed to it 
• the proper notices have been given 
• a court orders them to.

You should check with your local council about fences that need development approval or any other legal requirements you must meet before you begin work. Restrictions apply for:

• masonry fences higher than one metre 
• any other kind of fence higher than two metre 
• fences higher than one metre less than six metres from a road intersection 
• brush fences.
• Giving notice for fencing work

If urgent fence repairs are required you don't have to give written notice to your neighbour, but it is recommended you give them as much notice as you possibly can. 

If you want to erect a new fence you must give the owner of the neighbouring land notice of intention to erect a fence.

If you want to repair, replace or carry out maintenance work on an existing fence you must give the owner of the neighbouring land notice of intention to replace, repair or maintain a fence. 

These notices can either be delivered to your neighbour personally or sent through registered post. 

Your neighbour then has 30 days to give you a cross-notice if they object to your proposal. You can't start work until these 30 days have passed or you have received written notice from your neighbour consenting to the work. If you haven't received a written objection within 30 days you can assume they consent to your proposal. 

Your neighbour doesn't have to state why they object or give an alternative option in the cross-notice. If the matter goes to court they will have to give good reason as to why they object - otherwise the court may order the work to proceed. 

For an alternative version of these documents contact the Legal Services Commission of South Australia.

Finding the owner of neighbouring land

If you don't know who owns the neighbouring land you can contact your local council or access SAILIS. If you still can't find the owner you can prominently display the notice on their land. If you haven't received a written objection to your proposal within 30 days you can assume they consent to the work.

Disputes over fences

You should talk to the owner of the neighbouring land in a calm and courteous manner if you are in disagreement about: 

• sharing costs 
• carrying out the work 
• the type of work required - eg repair the fence rather than replace it 
• accessing their land to carry out the work.

If you can't reach an agreement you can contact Community Mediation Services. They can act as an independent third party to help you reach agreement. 

If the issue is still unresolved you may choose to take the matter to the Magistrates Court. It is recommended that you seek independent professional advice from a solicitor. 

The court can determine: 

• whether the fence should be erected 
• type of fencing used 
• its location 
• who does the work 
• when and how the work is carried out 
• how costs are shared 
• orders for entry or access to the adjoining property.

Boundaries

The boundary is where your land meets another person's land. Boundary locations can only be determined by a licensed surveyor. 

If you are in dispute with a neighbour about the boundary location you can engage a licensed surveyor to mark  the boundary.  

Once this has been marked out anyone found to be moving or removing a survey mark may face fines and legal action. 

A fence may not necessarily be an accurate representation of the boundary line but regardless of its location it doesn't alter the actual boundary or the legal rights to ownership of the land.

Encroachment

This is the intrusion of a structure or other object - eg driveway, onto another person's land. This includes overhanging structures - eg balconies. 

To determine if encroachment has occurred on your property, you can engage the services of a licensed surveyor. They will be able to mark the boundary and assess the encroachment. If your neighbour refuses to have a survey carried out you can take the issue to the Supreme Court. They can make a legal order for the survey to be conducted. 

If a structure is found to be encroaching on your property you can apply to the Supreme Court for: 

• the removal of the encroachment 
• compensation for the encroachment 
• the land to be transferred or leased to the encroaching neighbour.

When making their decision the court will take into consideration: 

• who made the application 
• the nature and degree of the encroachment 
• the losses involved for each person 
• the circumstances in which the encroachment occurred.