Fencing, Tree, and Adverse Possession Disputes: A Guide for Victorian Property Owners

In Victoria, disputes between neighbours over shared boundaries are common and can escalate into complex legal conflicts. Issues involving fences, trees, and land ownership through adverse possession often require legal clarity and guidance. This article provides an overview of the key legal considerations surrounding these disputes.

  1. Fencing Disputes

Fencing disputes are among the most common conflicts between neighbours. Under the Fences Act 1968 (Vic), both property owners share equal responsibility for constructing and maintaining dividing fences. However, disagreements can arise over the type, placement, and cost-sharing of the fence.

  • Agreement on Fencing Work: Ideally, neighbours should agree on the fence’s specifications, costs, and contractor before any work begins. If no agreement is reached, a ‘Fencing Notice’ can be issued to formally propose the work. The neighbour has 30 days to respond. If the matter remains unresolved, either party can take it to the Magistrates’ Court.
  • Urgent Repairs: If a fence is damaged due to unexpected events like storms, repairs can be carried out without prior agreement. However, an ‘Urgent Fencing Notice’ must be issued afterward to claim contributions from the other neighbour.
  • Boundary Disputes: Disputes often arise over whether the fence is correctly positioned on the property boundary. In such cases, a boundary survey may be required. If the boundary remains contested, the court can be called upon to resolve the issue.
  1. Tree Disputes

Tree-related disputes frequently involve overhanging branches, encroaching roots, or tree damage to neighbouring properties. Under Victorian law, property owners have the right to trim branches or roots encroaching onto their property, provided the tree is not damaged.

  • Overhanging Branches and Roots: Property owners can cut back branches or roots up to the boundary line but cannot enter their neighbour’s property without permission. If these overhangs or roots cause damage, the affected owner may seek compensation.
  • Local Council Regulations: Some councils have specific rules governing the pruning or removal of significant trees. Property owners should check local regulations, especially regarding heritage or protected trees.
  • Resolving Tree Disputes: If discussions don’t resolve the issue, mediation services like the Dispute Settlement Centre of Victoria can help. If mediation fails, the matter can be taken to court, where an order may be issued requiring the neighbour to address the tree-related issue.
  1. Adverse Possession Disputes

Adverse possession is a legal principle that allows someone to claim ownership of land they have occupied without the true owner’s consent for a continuous period—15 years in Victoria. These disputes often arise when fences are misplaced or boundaries are unclear.

  • Claiming Adverse Possession: To succeed, the claimant must prove uninterrupted and exclusive possession of the land for at least 15 years, during which they treated the land as their own. Key factors include fencing the land, paying rates, and using the land in a manner consistent with ownership.
  • Legal Requirements: Adverse possession claims require the claimant to demonstrate clear intention and actual control of the land. Fencing the disputed area is strong evidence of possession, but occasional use or incidental activities may not be sufficient.
  • Court Involvement: Adverse possession claims are legally complex and often require court proceedings. The Magistrates’ Court handles claims linked to fencing disputes, but more intricate cases may be heard in the County or Supreme Court.

Important Considerations in Adverse Possession

Several specific requirements and exceptions apply to adverse possession claims in Victoria:

  • Time Limitation: The occupier must have possessed the land for at least 15 years.
  • Actual Possession: The possession must be open, peaceful, and exclusive, without the owner’s permission.
  • Exemptions: Certain lands, such as Crown land, council land, and water authority land, are exempt from adverse possession claims.

Conclusion

Disputes over fences, trees, and land boundaries can be contentious and often require legal intervention. While communication and mediation can resolve many issues, knowing your rights under Victorian law is crucial for achieving a fair outcome.

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