So you have purchased a property where the existing fence line does not appear to reflect the true boundary of yours and your neighbour’s property. Alternatively, you may have found yourself in a situation where it is impractical to build a fence along the boundary line if there are impeding topographical features.
It is not uncommon for dividing fences on rural properties to be in a position which is not exactly on the defined boundary line between two properties. This arrangement is often referred to as a “Give and Take fence”.
Generally, a “Give and Take fence” exists where an adjustment has been made to the direction of a fence between neighbouring land owners where they effectively give and receive some portions of each other’s land.
The reciprocal rights of a neighbour’s land by virtue of a “Give and Take” fence have been determined by Courts to be rights of tenancy and their entitlement is therefore one of exclusive possession, like a tenant and landlord arrangement.
So what if you or your neighbour wants to change the position of the dividing fence?
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) sets out the process for resolving common boundary line disputes as follows:
the first step is to prepare a written notice to the adjoining owner to have the common boundary defined by a surveyor. The adjoining neighbour then has one month to give the owner written advice as to where they believe the boundary is.
if the boundary line defined by the surveyor is in the same position described by the adjoining owner, then the adjoining owner is not liable to contribute towards the reasonable costs of a surveyor. Alternatively, if the boundary line differs from the line proposed by the adjoining owner, then each party must contribute equally towards the costs of engaging a surveyor.
If no agreement can be reached, the Queensland Civil and Administrative Appeals (‘QCAT’) has jurisdiction to resolve fencing disputes and can make orders that the dividing fence is built on a line as defined by a surveyor.
We encourage anyone who is unsure of what their obligations or rights are to contact Dan Creevey on 07 4617 8777 to obtain further advice tailored to your individual circumstances.