Dividing Fences

Discussion in 'Legal Issues' started by CHAOS, 3rd May, 2015.

  1. CHAOS

    CHAOS Member

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    I am awaiting photos from my PM for a newly erected fence that I have been kindly asked by the neighbour to pay for.

    Is it a legal requirement for a business to get both parties signatures before accepting a job to replace an existing fence?

    I have signed on at least 3 occasions but did not know if it was the fencing companies business practice or a legal requirement.

    If a non fencing company is employed - does that exempt them from that requirement?
     
  2. Paul@PFI

    Paul@PFI Tax, SMSF & Planning

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    There is no uniform practice. The fence contractor would assume one of you is paying then you need to reimburse the other owner. If they got your OK on the cost they might separately bill you each.

    The neighbouring fences law isn't really a matter for the contractor. Its a matter between the neighbours. I would imagine that if your neighbour approved the build on their own word then any debt is enforceable upon them and they subsequently could seek orders under neighbouring fences laws against you also. You have no contract with the contractor to enforce.

    If neighbour built fence themselves then 50% of the "cost" is yours. Dangerous for neighbour to seek payment without your agreement prior. You could dispute many aspects of the job (is it needed ? quality, specs etc)

    Good practice is to both agree (in writing) on specs and cost before commencing.
     
  3. CHAOS

    CHAOS Member

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    We were advised by the neighbour that they wanted a new fence and we were waiting for them to obtain quotes and forward them on. (A fence that did not need replacement but they wanted to install). Our PM also sought a quote.

    As I said I am waiting on photos to come through.

    The invoiced amount is inflated by more than double. It does not detail any additional works carried out. Again photos will tell.

    If a good job has been done, (despite a new fence not being required in the first place) we will pay half. However, she has already paid it. For tax purposes we need to be invoiced - so we can claim the works. What do we do here?
     
  4. Befuddled

    Befuddled Member

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    As Paul said, it's a matter between neighbours.

    It's a bit dodgy that your neighbour has built the fence without your prior consent or input and simply expect you to pay for half of it.

    My dad is in the weldering/fencing business. It has happened on numerous occasions over the years where one neighbour puts up a fence only for the other to complain to the local council. Council sees it as a matter of their fence entering into your property without your permission, and have ruled in favour of the person complaining each time.

    There have been instances where one party wanted the fence while the other didn't, and the first party's had to have the whole fence pulled up and moved back so that it fits entirely into their property.

    If the fence was erected on the boundary between both properties then they have to reach an agreement with you (hopefully before the actual construction!). Since you weren't informed you are entirely entitled to refuse to pay or even seek to have it removed.

    If the fence was erected entirely on the neighbour's premises then there is zero reason for you to have to fork out any money because it's entirely owned by the neighbour
     
  5. Befuddled

    Befuddled Member

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    Contact your local council and let them know about what's happened. Depending on whether you value the relationship with your neighbour it's entirely plausible that you could get away without paying anything. Afterall the old fence was functional.
     
  6. CHAOS

    CHAOS Member

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    Photos have come through - a stock standard pine pailing fence - no extra work. So my question now is why did the company charge $163 pm? Less than 12mths ago we had other section of fence done and it was $66 pm and pm quote is at this rate also.

    What is the best way to respond to the neighbors communication?
     
  7. Perp

    Perp Member

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    This is not an accurate reflection of the relevant law; the Dividing Fences Act 1991 (NSW) defines a dividing fence as "a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary".

    CHAOS, get familiar with the law, and make a decision based on that, not on hearsay.

    Don't contact the Council; this is a civil matter over which they have zero jurisdiction.

    s 22 of the Act seems to be relevant to recovery of expenses when the neighbour mistakenly fences before serving notices.
     
  8. CHAOS

    CHAOS Member

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    Thank you perp. I am familiar with the vic fences act. I have a strong case not to pay. The neighbour has not served me a notice to fence. They had someone who contacted the pm and our details were forwarded.

    If served a notice then we only legally have to pay half of the lowest quote.

    We will need an invoice for this payment to claim at tax time.

    Do we sit on our hands and wait for the neighbour to demand payment?
     
    Last edited: 4th May, 2015
  9. CHAOS

    CHAOS Member

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    Thank you peep. I am familiar with the vic fences act. I have a strong case not to pay. The neighbour has not served me a notice to fence. They had someone who contacted the pm and our details were forwarded.

    If served a notice then we only legally have to pay half of the lowest quote.

    We will need an invoice for this payment to claim at tax time.

    Do we sit on our hands and wait for the neighbour to demand payment?
     
  10. Paul@PFI

    Paul@PFI Tax, SMSF & Planning

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    The original invoice (copy) and evidence of your payt for the half to them would suffice.
     
  11. Paul@PFI

    Paul@PFI Tax, SMSF & Planning

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    I have heard stories from others about fence companies that try it on to make more $ from the stupid neighbour (often aged people). They inflate the cost then do a deal where if the owner gets more than 50% they will split it and refund some....Its their bargaining tool for fools who don't check or stand up to extortion.

    Check Vic law and fence process here http://www.disputes.vic.gov.au/fences-faqs

    Spot the weakness in the Act. Its allows a verbal agreement to escape the notice requirement. That's a huge hole. They say we both agreed verbally and then you say you didn't agree. Then you start arguing about costs - Now its about price not the notice. So a magistrate decides ?? I suspect you have all the reasons to refuse a request BUT I wouldn't go replying without legal advice. Sometimes silence can be a strength to any later defence.
     
  12. CHAOS

    CHAOS Member

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    Yes the neighbour is elderly 70s I'd guess and could have been advised this route from the business.

    The business name doesn't come up in a google or local directory. The pm has never heard of them. The abn is registered but attached to a different trading name.
     
  13. Macca

    Macca Member

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    Probably a family member and they want you to pay for the whole fence, hence they have inflated the cost in the hope you will pay half.

    I would forward them a copy of your quote/account at $66pm and ask them for a signed agreement to accept $33 pm as full and complete payment for the fence.

    If they disagree then I would refer them to the act and point out that they have not followed the required steps and consequently you do not have to pay anything.
     
  14. Phar Lap

    Phar Lap Member

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    Chaos, you've been had, or at least "attempted to be had".

    Believe me, Im a retired fencer.

    They cannot expect you to pay an invoice without your prior approval to the works being undertaken.

    Does that make sense?

    Unbelievable !

    Oh ohh…hang on, I just re-read you original post.

    Yep, you've been had after signing on 3 occasions according to you.

    You may have some recourse depending upon what state you are in and what you actually signed. Def be worth looking into because that charge is way over the top and you know it.
     
    Last edited: 4th May, 2015
  15. Perp

    Perp Member

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    I just picked up on this in response to Phar Lap's comments.

    Could you tell us a bit more about this? Do you mean with regards to this fence?
     
  16. CHAOS

    CHAOS Member

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    Phar Lap - the signing at least 3 times previously relates to 3 dividing fences that we have had put up in our time. We have initiated the process and also had neighbours initiate also.

    A close family member has been in the game 30 years. The process is they get sigs before starting. (unsure on the legal part they just operate this way). I asked him about not being contacted by registered mail and he said the pm was contacted and they are your agent so that counts.


    We were notified in x month 2015 by pm when they forwarded a quote they had organised. We instructed then to have the neighbour contact us direct and give them our details. We did not authorise our pm to act any further. The agent was contacted by a 'He' and they don't have a record of his name. They have never spoken to the actual neighbour. Because in their email the pm said 'He' has organised a quote and at the time I raised the question as to who he was. The neighbour is a she and on her own.

    The invoice is dated 3 weeks post x date of email sent to us by pm. The handwritten letter attached is dated 6 weeks post invoice date. It was sent to our PO box - which shows the neighbour received the pm instructions to contact us direct. The neighbour has used a non fencing business - I infer to get around the two signature things. The invoice makes reference to a quote 4months prior which we have not seen. It also thanks the neighbour for her work 'again'.

    I am not sure if the neighbour as an elderly person has been duped by someone who has said they will take everything and it is he who went to the re on the neighbours behalf. He may also have instructed her just pay up and then ask.
    Or the persons are known to the neighbour and they are both trying to rip us off.
    Option 3 is the pm is possibly withholding information. They may have received quote earlier and not passed it on. They did say that they have not authorised or signed anything on our behalf.

    We will be renovating this place later in the year - so need to be on good terms with the neighbour.

    A friend suggested 'what letter?'
     
  17. Tigger

    Tigger Member

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    You could go down the 'what letter?' path (ignore it).

    Or you could write back and say there is nothing wrong with the existing fence and you are sure your PM would have told you if there was, as they do regular inspections of this property for you. You then thank them and say you will not be authorising any fence works - you might choose to mention that you will be doing reno work in 12 months time and the fence might get damaged then anyway so you don't want to spend money on it now.

    Or you could write back and say you have no record of receiving a Notice to Fence and you think they have sent the letter to the wrong address. (there is nothing wrong with the existing fence)

    Certainly don't pay it. They have no leg to stand on, how you deflect them depends on how you want the situation to play out. If it were me I'd probably go with the 3rd option above. Just because I like to have a papertrail in case further action is needed.
     
  18. Perp

    Perp Member

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    I'm disappointed at how many people want to go a legalistic or aggressive path as their first play; no wonder lawyers are kept busy, with people being so poor at conflict resolution.

    You seem to know that the owner is an elderly lady. I doubt that this is part of her grand retirement plan, to try and rip you off for a fence.

    I think you should try seeing if you can meet with her in person, and either let her tell you the story, or just open with "I just wanted to talk about the fence..." and see what she says.

    Whatever she says, you will have a much clearer idea of the appropriate response and you've lost nothing. Hopefully, if - as I expect - she just wasn't aware of the requirement to issue a formal Notice etc., then hopefully by taking this route you can come up with a reasonable compromise and keep the relationship intact. (Which you indicate you need, and which I think is always a good idea, 1) just in case you need something further down the track, and 2) just because it's nice to have good relationships.)

    If you do go down the legal route, I suspect that eventually, a magistrate (or whoever hears it) would find, in equity, that you're obligated to pay half of a reasonable price, or ~$33/m (if the $66/m is a quote from a licenced tradesperson who issues a tax invoice etc.). But if you're obliged to go down the legal path, I doubt you'll retain the good relationship with the neighbour.

    If she really had no idea she had done the wrong thing, and had no idea that the quote was high, then you have to consider whether the <$50/m differential ($81.50/m vs $33/m for your half) is worth damaging the relationship with your neighbour over.
     
  19. CHAOS

    CHAOS Member

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    Thank you for everyone's feedback.

    Ideally a chat in person is best. The property is not local - which realistically means about 8 weeks until I can get there.

    As I understand it - it would be the neighbour who would have to take legal action to retrieve the money requested? Just asking in case she becomes impatient with us responding to her request.

    Things come in threes, a pm phoned this morning with a break lease - the tenant has already vacated! What will be next?

    Deep breath - don't sweat the small stuff.
     
  20. Phar Lap

    Phar Lap Member

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    Yep, dont let it drag you down.

    Just go the polite route to resolve the situation, but also dont let anyone "ride" you down.

    Its a very volatile place re dividing fences,emotions can get in the way.

    Slowly but surely work it through using common sense.