Dividing fences and other boundary issues

Disputes with neighbours over fence and other boundary issues can cause long-lasting ill-feeling. Knowing your rights can help you avoid disputes. 

Video: Dividing fences and other boundary issues
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This information will help you start to deal with some common fencing and boundary issues, including how to find the owner of a neighbouring property. Find out:

  • how to find the owner of another property
  • where to get information about fences 
  • what you can do about your neighbour's tree branches or roots entering your property, and
  • where you can start if you have an issue about a retaining wall.

How do I find the owner of a neighbouring property?

If you do not know the name of the owner, you can:

  • check with the tenants or property manager, if the property is rented or leased
  • do a land title search through Landgate (a fee is payable), or
  • contact your local council or shire and see if they can tell you who owns the property.

What things should I consider before building or replacing a dividing fence?

Having to build, repair or replace a dividing fence can be complicated, especially if there are also retaining walls involved. It is often a good idea to get legal advice.

Dividing Fences: A guide is produced by the Building Commission (part of the Department of Mines, Industry Regulation and Safety). The guide includes information about how to agree about and share the costs of dividing fences, and answers some frequently asked questions about dividing fences.

You may also be able to get information and advice about dividing fences from the Building Commission's website or your local government.

What can I do about my neighbour's overhanging branches or tree roots that are coming on to my property?

Repairing damage caused by a neighbour's tree can be costly. Roots can damage foundations, block drains or lift brick paving. Overhanging branches can drop leaves into your gutters, block light, or prevent your own trees and plants from growing.

Often, the best thing to do first is to talk to your neighbour to tell them about the problem. They might not know what is happening on your side of the fence. They may take care of it themselves, or be happy for you to deal with the situation. 

Can I remove branches or roots that have come onto my property?

Unless the tree is protected by a tree preservation order, you are allowed to:

  • cut an overhanging branch back to the point where it enters your property.
  • dig up the root and cut a tree root back to the boundary or fence line of your property.

You should take care not to cause unnecessary damage to the tree. If you are planning to remove a large amount of branches or roots, which could damage the tree, it is best to tell your neighbour first and get them to arrange for the branches or roots to be pruned.

You must not:
  • cut the branch or root on your neighbour's side of the boundary
  • poison the neighbour's tree or any roots that are on your property, or
  • enter your neighbour's property without their agreement.
Do I have to let my neighbour or anyone else know?

You do not have to let your neighbour know you intend to cut things back from your property, but it is a good idea to let them know there is a problem and what you are planning to do.

Some local councils have tree preservation orders in place. These orders may ban pruning or removing specified trees without a permit. You can check with your local council.

Who has to pay the cost of removing branches or pay for repairs?

Once your neighbour knows of the problems caused by their tree (or should have become aware of it), they have a responsibility to fix the problem so it does not continue or get worse. They can be responsible for paying the cost to have it pruned back to the boundary line, or for repairs to fix damage caused by fallen branches or tree roots.

If possible, you should discuss the issue with your neighbour and agree on who will pay and organise things before you start the job. Sometimes, your neighbour may want to organise pruning the tree (either to do it themselves, or hire a contractor). If you hire someone before telling your neighbour, it is more likely to lead to disputes later on about who should pay and whether the cost was reasonable.

If you need to have repairs done or hire a specialist to remove the roots or branches, write a letter to your neighbour:

  • setting out what the problem or damage is (perhaps include some photos to show them)
  • giving them copies of quotes for getting the work done, and
  • asking them to pay for the work to fix the problem or repair the damage.

You should keep a copy of the letter.

If you cannot agree on what to do, or who should pay, there are mediation services available that can help resolve the dispute.

I need some help about a retaining wall. What should I do?

The law about retaining walls is complex. You should get legal advice. Legal Aid WA does not give advice in this area.

Generally the person who changes the lie of the land either by excavation or building up is responsible for building a retaining wall.

You should always discuss with your neighbour before making any changes and also check with your local government about building requirements before constructing a retaining wall.

 

More information  

Building Commission
Magistrates Court of WA
  • Dividing fences
    Relevant forms and information about court fees if applying to the Magistrates Court about a dividing fence.

 

Reviewed: 11 April 2018 

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.