Common boundary not agreed.
If you wish to construct a ‘dividing fence’ on your property but you (the ‘owner’) and your neigbour (the ‘adjoining owner’) cannot agree on the position of the common boundary for the purpose of carrying out the fencing work, you may need to use the process contained at section 40 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ‘Act’) to define the position of the common boundary and resolve the dispute.
Notice of Intention
Section 40(2) of the Act provides that an owner may give a written notice to the adjoining owner, or the adjoining owner’s agent, of the owner’s intention to have the common boundary defined by a ‘cadastral surveyor’ engaged by the owner.
Adjoining Owner’s Response
Section 40(3) of the Act then provides that if an adjoining owner is given a notice under subsection 40(2) of the Act, the adjoining owner may, within 1 month after the notice is given—
- (a) have the common boundary defined by a cadastral surveyor engaged by the adjoining owner and give the owner written advice of the common boundary as defined by the cadastral surveyor; or
- (b) give the owner written advice of the common boundary as defined by the adjoining owner if the adjoining owner is satisfied of the accurate position of the common boundary.
Right to obtain a cadastral survey
Section 40(4) of the Act states unless an owner who has given notice under subsection 40(2) of the Act receives advice under section 40(3)(a) of the Act, the owner may have the common boundary defined by a cadastral surveyor engaged by the owner.
Costs of cadastral survey
According to section 40(5) of the Act, if the common boundary defined by a cadastral surveyor engaged by the owner under section 40(4) of the Act is in about the same position as the position defined by the adjoining owner in an advice under section 40(3)(b) of the Act, the adjoining owner is not liable for any of the reasonable cost of engaging the cadastral surveyor.
However, section 40(6) of the Act then states that if section 40(5) of the Act does not apply:
- (a) adjoining owners are each liable for half the reasonable cost of engaging a cadastral surveyor under this section to define the position of the common boundary; and
- (b) if 1 adjoining owner pays the entire cost, the half payable by the other adjoining owner is recoverable as a debt by the first adjoining owner.
Dividing fences and boundary disputes in Queensland is regulated by the Act, and the law and procedure governing these disputes can be complex. If you are thinking about constructing a dividing fence and you wish to know about your rights and responsibilities to the adjoining owner, or if you have encountered a dispute in relation to a dividing fence or the position of the common boundary, contact AdviiLaw today to speak to an experienced lawyer about your legal position.
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