Dividing fences and other boundary issues

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 to see if they can tell you who owns the property.

The Department of Energy, Mines, Industry Regulation and Safety (DEMIRS) website has information on constructing a new fence when the adjoining owner cannot be contacted.

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. 

You may be able to get information about dividing fences from the DEMIRS website or your local government. The DEMIRS webpage Dividing fences- overview outlines the process for sharing costs and determining boundaries between neighbours.

The Magistrates Court deals with applications by the owners of neighbouring lands for the construction and repair of a dividing fence.

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 should check with your local council.

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

Once your neighbour knows of the problem 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 may 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 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, email or send a text message 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, email or text.

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

If I need some help about a retaining wall or another boundary structure 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 your proposed changes with your neighbour; and
• check with your local government about building requirements,

 before constructing a retaining wall or making any changes.

If there are problems with any building work being completed on your boundary under a building permit, you should contact your local council. 

More information  

Building and Energy, DEMIRS​​​​​​

• Work affecting other land

Magistrates Court of WA

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

 

Reviewed: 16 November 2023