I have heard of a boundary fence dispute between two warring neighbours that after about $10,000 in legal costs, neither side seemed any closer to a result that favoured one over the other. Each party claimed the moral and legal high ground and the argument is likely to carry on ad infinitum.
The exact detail of the boundary fence dispute is not really relevant. It is a shame that such a dispute has escalated to cost thousands of dollars and, more importantly, ruined a neighbourly relationship. Real estate agents are able to recount many stories involving neighbourly disputes and some property sales occur on the basis that some folk simply cannot bear to live next door to a particular neighbour any longer. It is true that by common standards, dysfunctional and socially challenged households are always someone’s neighbour and do pose challenges, but even these situations are rarely permanent and compromise often solves many resultant grievances.
Many neighbourly disagreements stem not from just social matters but from legal ones. The repair, replacement or alignment of boundary fences, Rights of Carriageway, the use of Common Property in Strata Schemes and Easements all carry certain obligations for those affected by them. Solving disputes with such matters is normally quite straight forward because there is either legislation that provides the framework for a solution or common law precedent that defines a prior legal decision.
Sections 14 and 15 of the Dividing Fences Act WA 1961, for example provides detailed rules as to who pays for the cost of repairing a dividing boundary fence. Arguments may arise when one neighbour refuses to contribute but the Act provides a process for recovering monies due. Similarly, folk who leave their vehicle parked on Common Property for example contravene the Strata Titles Act WA 1985 and the Standard By-Laws therein provide the path to an enforceable remedy.
Arguably more difficult is boundary alignment issues particularly in the early established areas of Fremantle. I would wager that the majority of boundary fences of inner city housing in Fremantle are imperfectly aligned. In some cases, the boundary fence may be out by a significant margin. Such title encroachments can lead to the more complex legal matter of “adverse possession” under specific circumstances and whilst common in real estate vernacular, actual claims for adverse possession are relatively rare.
Thankfully, neighbours prefer to live harmoniously and a misaligned boundary that has been in situ for decades in normal circumstances is better left alone. The ability for neighbours to compromise over normally petty issues goes a long way to providing years of friendly “hellos” and a good supply of lemons from over the side fence.
By Hayden Groves
REIA Deputy President
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