Browse Forums General Discussion 1 Aug 16, 2011 12:50 am Our neighbour behind us has just given us a quote for the fence and retaining wall he had erected just over a year ago on 7/8/10. We put a 10% deposit on our land in March 2010 and settled on the land in December 2010. At no point did this neighbour ever speak to us about fencing etc and as far as we understand it, he is solely responsible for the retaining wall as he built up his land to build on & therefore had to retain it. We cut into our land and are a little lower than him so we have since put up additional retaining walls to retain the land (which we understand that we're solely responsible for). So I guess my questions are: 1. Can he turn around a year later and request 50% payment for a fence that he solely chose and sought no agreement on? 2. Was it even classed as our land in August last year? (considering we didn't settle until Dec)? 3. Does anyone know where I can obtain the rulings regarding retaining walls for NSW? I've done a few searches without any luck. Regardless of right thing or not, we'll give him 50% for fencing as ultimately we're not unhappy with the choice and we don't want to be un-neighbourly. The retaining wall however I strongly don't believe is our responsibility and I'd love to have a print out to give him confirming who is responsible for what. I'd love any input or if you could point me in the right direction. Thanks Building an Eden Brae Saville 27 http://karry327.blogspot.com/ Building thread https://forum.homeone.com.au/viewtopic.php?f=31&t=44247 Fencing / Retaining wall help 2Aug 16, 2011 7:53 am Hi I had a problem with a retaining wall about a year ago and had to get my solicitor involved to do some research. This is not legal advice, but I think it is reasonably accurate from what he told me: In NSW the Dividing Fences Act governs fences. You can find it at http://www.austlii.edu.au - search NSW Consolidated Acts to locate the Dividing Fences Act This act does not cover retaining walls. The retaining wall is the responsibility of the person who has altered the ground level (ie performed the cut/fill). You are responsible for 50% of the price of the fence, although it should be mutually agreed before work commences. Obviously this is hard in a new estate where you didn't even own the land at that point, but as you say, you are ok with the fence, so best to just pay that. Paul Re: Fencing / Retaining wall help 3Aug 16, 2011 8:19 am I found this in a quick google search - personally I think your neighbour is trying to sneak one past you given that they have built up their lot, which has possibly resulted in the need for the common party wall (retaining wall on the boundary): http://www.lands.nsw.gov.au/__data/assets/pdf_file/0003/91425/P09-16-002_Dividing_fence_and_other_legislation_fs_final.pdf Edit: The act now does include limited scope to pass judgement on common party wall (dividing wall on a boundary beneath a fence) disputes. You'll probably need a surveyor/engineer to examine the situation to see if the retaining wall was required anyway due to your cut (in which case you'll might have to pay) or if it was required solely as a result of the neighbour building up their lot - the fact that it is on the boundary is irrelevant as far as I can tell because it (the wall) was built to retain the slope, not just support the fence. As for the fence itself - as a general rule of thumb you are only required to pay 50% of the cost of the minimum acceptable fence as stated in council guidelines - if they have upgraded the fence then that is at their cost, but as you are already happy to contribute 50% towards the fence that's not an issue really. Some people apparently have nothing better to do than comment on other people's sigs. Re: Fencing / Retaining wall help 4Aug 16, 2011 9:00 am We have neighbours on all sides that we had to go 50/50 on with. Usually there was a letter in the mail first from a fencing company saying do we agree and then we paid them directly. On the flipside one neighbour has not built, we had to go to the council and get their details then sent an invoice to them saying do they approve. (Which they haven't for any neighbour yet that's a different matter). Interesting they could do anything without approval. In our estate it has to be timber paling fence which gets around all the issues of which fence. Re: Fencing / Retaining wall help 5Aug 16, 2011 11:24 am I think that because the work on the fence was done prior to you owning the land it is not your responsibility for any of the cost. For example if you sold you house now you couldn't pass on that cost. Re: Fencing / Retaining wall help 6Aug 16, 2011 11:58 am kdgirl I think that because the work on the fence was done prior to you owning the land it is not your responsibility for any of the cost. For example if you sold you house now you couldn't pass on that cost. I actually thought it was the opposite. If you think about it, no-one ever owns the land before buying it. So no-one would ever have to pay for the fence. Our neighbour that hasn't built next to us is trying to sell the land and we've been told the cost of the fence will be to the new owner who builds, but guessing the current owner has not disclosed. We've given him notice of costs and think there is a time that he can decline but has an obligation also. So we can now build at our cost, send him a bill and then take to VCAT if not paid. Re: Fencing / Retaining wall help 7Aug 16, 2011 12:19 pm Before you buy the land it's owned by the developer, and the developer is liable. If your contract is anything like ours it states that the developer is liable to contribute only $1 to the cost of any fence built adjoining their land, and by signing the contract to purchase the land, you agree not to claim more than that. I'm in Victoria though, it may be different in NSW. But you should check your contract for anything like that. If it's there, then your neighbour would also have it in his contract, and you can show that the should be claiming his $1 from the developer. Metricon Riva 33 - http://herlihy-riva.blogspot.com Site start 15/03/2010 - Handover 23/12/2010 9 months and 8 days (284 calendar days) from site start to handover Re: Fencing / Retaining wall help 8Aug 16, 2011 12:45 pm notremaison kdgirl I think that because the work on the fence was done prior to you owning the land it is not your responsibility for any of the cost. For example if you sold you house now you couldn't pass on that cost. I actually thought it was the opposite. If you think about it, no-one ever owns the land before buying it. So no-one would ever have to pay for the fence. Our neighbour that hasn't built next to us is trying to sell the land and we've been told the cost of the fence will be to the new owner who builds, but guessing the current owner has not disclosed. We've given him notice of costs and think there is a time that he can decline but has an obligation also. So we can now build at our cost, send him a bill and then take to VCAT if not paid. You just need to be careful here - the legislation only supports claims for 50% of the cost of the minimum acceptable fence allowed by council regulations, so if the fence you have erected exceeds the minimum requirements set out by the council then you may not be able to claim the normal 50% of what you paid (it will be 50% of the estimated cost for erecting a "standard" fence that meets requirements). Some people apparently have nothing better to do than comment on other people's sigs. Re: Fencing / Retaining wall help 9Aug 16, 2011 1:06 pm cmhamilton notremaison kdgirl I think that because the work on the fence was done prior to you owning the land it is not your responsibility for any of the cost. For example if you sold you house now you couldn't pass on that cost. I actually thought it was the opposite. If you think about it, no-one ever owns the land before buying it. So no-one would ever have to pay for the fence. Our neighbour that hasn't built next to us is trying to sell the land and we've been told the cost of the fence will be to the new owner who builds, but guessing the current owner has not disclosed. We've given him notice of costs and think there is a time that he can decline but has an obligation also. So we can now build at our cost, send him a bill and then take to VCAT if not paid. You just need to be careful here - the legislation only supports claims for 50% of the cost of the minimum acceptable fence allowed by council regulations, so if the fence you have erected exceeds the minimum requirements set out by the council then you may not be able to claim the normal 50% of what you paid (it will be 50% of the estimated cost for erecting a "standard" fence that meets requirements). Yes, agree on that. As mentioned we have a standard fence that all 'must' build written in to our contracts for this development. Anything outside the norm is a cost to the person/s doing it. Like the above if one decides to build a retaining wall due to other works such as raising soil levels, I'm sure the other neighbour doesn't have to pay for that. It's just boundary fencing for us. No colorbond etc must be timber paling. Re: Fencing / Retaining wall help 10Aug 16, 2011 1:30 pm You are not liable for the fence. In NSW neighbours must by law share the cost of the fence (based on the cost of a basic fence) but that is only enforceable if a notice to fence has been served. Since your neighbour built its fence without a notice and a signed agreement by you, he has no right to claim any money. Before you bought your land the owner was the estate developer. Your neighbour should have claimed money from them. However developers typically include a clause in the contracts saying "the purchaser must not build a fence without prior approval of the developer, and the developer cannot decline a request to build a fence if the purchaser pay the full cost", or some other waiver clause. More info can be found in the Dividing Fence Act: http://www.legislation.nsw.gov.au/maint ... cd%200%20N DKP Re: Fencing / Retaining wall help 11Aug 16, 2011 5:24 pm Thank you everyone, your advice has been very helpful! From what I can ascertain, we're not responsible for either cost however we'll do the neighbourly thing and give him half for the fence. All I need now is some literature confirming that "whoever alters the land level is responsible for retaining the land"!! Can't seem to find it anywhere! Building an Eden Brae Saville 27 http://karry327.blogspot.com/ Building thread https://forum.homeone.com.au/viewtopic.php?f=31&t=44247 Re: Fencing / Retaining wall help 12Aug 16, 2011 7:27 pm kdgirl I think that because the work on the fence was done prior to you owning the land it is not your responsibility for any of the cost. For example if you sold you house now you couldn't pass on that cost. Exactly right, so don't worry about it you have a strong and valid case. Re: Fencing / Retaining wall help 13Aug 17, 2011 10:54 am karry327 Thank you everyone, your advice has been very helpful! From what I can ascertain, we're not responsible for either cost however we'll do the neighbourly thing and give him half for the fence. All I need now is some literature confirming that "whoever alters the land level is responsible for retaining the land"!! Can't seem to find it anywhere! That would have been part of the process for gaining council approval for the construction of your neighbour's house - as you have mentioned when you cut into your block to build you also had to put in retaining walls to retain the slope on your block, so if your neighbour required a retaining wall to retain the slope on their block so that their footings would be stable then that has nothing to do with you, even if the retaining wall has been built on the boundary. The only time a retaining wall can be included in a fencing claim is if the sole purpose of the retaining wall is to support the fence itself - if the wall is already required to retain slope and protect their block from land-slips from their side due to the natural slope/building up of contour levels then it cannot be included in the fencing claim. Having said that all of this needs to have been done by the book, including a notice to fence being communicated to the affected party(ies) - the provisions for which are discussed in the fencing act legislation - so you are still doing the "neighbourly" thing by agreeing to split the cost of the fence when you realy aren't required to by law. Your neighbour is just hitting in hope on the retaining wall IF they required the retaining wall already as part of their build and IF the wall did not require upgrading due to the subsequent cut on your side when you built your house. To be honest I can see it's probably not even the cost of the fence they really care about - it's the retaining wall they are possibly trying to pull a shifty on as that would involve a much higher cost. Some people apparently have nothing better to do than comment on other people's sigs. Re: Fencing / Retaining wall help 14Aug 22, 2011 3:20 pm Funnily enough the cost of the retaining wall was only $990 and the fence was $750. The retaining wall is currently doing it's job but it's not the ideal sized timber and it's also not termite protected (apparently something was sprayed on it after it was erected which doesn't help for the bits underground). Either way, that's a whole other side point. I think what annoys us the most is that he pops his head over the fence and flaps about the invoice with the assumption that he's straight up entitled to half of everything. He either has no clue or he is being a bit shifty and hoping we don't have a clue. End of the day, you don't know if someone has the ability to be an annoying so & so and we all have to live next to each other for a long time no doubt. So, we'll go halves for the fence & tell him to bugger off re his retaining wall. Thanks again everyone. Oh and I spoke to Council in the end and the Building Surveyor there told me without a doubt that he was responsible for the retaining wall and gave his name & number for the neighbour to call if he needed confirmation. Building an Eden Brae Saville 27 http://karry327.blogspot.com/ Building thread https://forum.homeone.com.au/viewtopic.php?f=31&t=44247 Thank you again Simeon.. I will call my certifier for that. Have a good day 4 1327 Thanks for your reply! All valid points and I agree with you on many of them. I am in QLD, any recommendations on a construction lawyer would be helpful 3 2052 Thanks for the insights, that makes perfect sense, and yeah, I will be leaning on the experience of the excavator operator entirely. 6 11039 |