Boundary fence disputes — surveys, encroachment and the line you thought you owned

Most fence arguments in Australia are not about money. They are about a line someone can point at. The posts have “always been there”. The lemon tree is “clearly on our side”. The new owner has a plan that does not match the palings. By the time a contractor is asked to “just follow the old holes”, two households are already defending a version of the land that a surveyor has not been invited to see.

Dividing-fences law assumes you know where the boundary is. If you do not, the notice, the quote and the tribunal application are all built on sand. This is a conservative briefing on how to find the line, what encroachment actually means, and when to stop work. It is not legal advice. Title and encroachment statutes differ by state. A licensed surveyor and, if the strip is wide, a solicitor will outrank any journal.

When the fence is not the boundary

The boundary is the line described on the deposited plan, marked — if you are lucky — by survey pegs, nails or marks in a kerb. The fence is a structure someone built, often by eye, often to miss a tree, often to follow a ditch. In older suburbs the two can be half a paling apart for a century without anyone minding, until a pool, a studio, or a sale makes the millimetres expensive.

Occupation — the fence, the hedge, the garden bed — is not title. Australia does not treat a long-standing paling as a casual transfer of land. Adverse possession exists in some jurisdictions, but it is slow, technical, and not a backyard theory you should run at a neighbour. If someone tells you the fence has “become the boundary”, ask them to show the survey, not the story.

A fence can sit wholly on one lot and still be used as a dividing fence. That does not make the occupied strip a gift. It also does not automatically make the fence unlawful. It makes the next replacement a moment when you should measure first.

If you are already in a cost argument, park it and read who pays for a sufficient dividing fence. Money is the second question. The line is the first.

Identification surveys, pegs and what to ask for

A licensed surveyor can give you an identification survey: a plan that shows the title boundaries and the structures near them, including the existing fence. That is the document you want before a dispute hardens. It is not the same as a contour survey for a builder, and it is not a Google overlay.

Ask the surveyor to mark the line on the ground — pegs, paint, nails — and to note how far the existing posts sit from it. Ask them to look for original marks. On a 1920s lot those marks may be gone. On a 2000s lot they may still be in the corners under a decade of mulch. Do not pull a peg out because it is in the way of a post hole.

Cost varies with access, vegetation and how confused the old marks are. It is still almost always cheaper than a directions hearing about a garden bed. If both owners will use the plan, consider sharing the invoice. A shared survey is a fact both households can live with. Two rival surveys are a second argument.

Prepare the line after you know where it is, not before. Clearing scrub along the wrong metre is how a quiet job becomes a compensation claim. Locate services at the same time. A boundary that has wandered may have wandered over a sewer.

If the survey shows a small, long-standing offset and both owners are content, you can agree in writing to rebuild on the old line, or to rebuild on title. Either agreement should be on paper. Informal “she’ll be right” is how the next owner inherits a fight.

Encroachment, buildings and the fence that ate a strip

Encroachment is a lawyer’s word for a structure that sits over the line. A retaining wall, a garage eave, a studio slab, or a fence-and-wall combination can all encroach. Some states have specific statutes about buildings that encroach, with remedies that can include payment, removal, or a forced easement. Those statutes are not something to paraphrase from memory, and they are not something this journal will invent section numbers for.

A fence on its own is usually handled more quietly: a survey, a conversation, a dividing-fences notice, a rebuild on the correct line. A fence that has become a wall, or that supports a building, is no longer “just a fence”. Stop and get advice.

Do not self-help. Cutting down the neighbour’s palings on a Saturday because the survey put them 200 millimetres over the line is how ordinary people meet injunctions. Photograph. Write. Offer a plan. If the neighbour is building now, a polite letter today is worth more than a shout when the concrete has gone off.

Trees complicate the picture. A trunk on the line is a shared problem in many Acts; a trunk wholly on one side with a canopy over the fence is a different problem. Roots that lift posts are a damage question, not a licence to poison. Keep trees in their own correspondence.

Where a retaining structure is doing the real work, treat it as a wall. Our piece on retaining walls versus fences is the briefing for that overlap. Pouring a new paling on top of an encroaching wall simply concretes the error.

How to run the dispute without making it worse

Keep the temperature down. The people who do well in these arguments are the people who sound slightly bored. Serve notices the Act describes. Use a contractor who will work to marks, not to vibes. Do not brief the contractor with “put it where the old one was” if the survey says otherwise.

If you need a tribunal, bring the identification survey, the quotes, the letters, and a photograph of the marks. Do not bring a history of the neighbour’s parking. Tribunals can order a fence on a line, a split of cost, and sometimes a contribution to survey costs. They cannot give you a personality transplant for next door.

Sale is the other deadline. A purchaser’s conveyancer who spots an encroachment late will ask for a survey, an agreement, or a price reduction. It is better to find the problem while you still live there and can walk the line with a cup of tea.

The rest of our neighbours-law journal assumes the line is known. If it is not, this article is the one to finish first. Then build.

Frequently asked questions

The fence has always been there. Does that make it the boundary?

No. Occupation is evidence of a habit, not of title. In Australia the boundary is the line on the plan, marked by a licensed surveyor. A long-standing fence can sit wholly on one lot for decades. Adverse possession is a narrow, slow doctrine — not a backyard shortcut. If the posts and the plan disagree, believe the plan until a surveyor tells you otherwise.

Do I need a survey before I replace a dividing fence?

If either owner is unsure, if the old posts wander, or if a building sits close to the line, yes. An identification survey is cheaper than a tribunal argument about fifty millimetres of garden, and it gives both households a fact they can attach to a fencing notice. On a well-marked urban lot with original pegs visible, you may not need one. The moment someone says “I think it’s about here”, you do.

What if the neighbour’s fence is on my land?

Stay conservative. Photograph the marks, get an identification survey, then write a flat letter. Some states have encroachment statutes for buildings; a fence is often handled through dividing-fences notices, negotiation and a rebuild on title. Do not cut posts down, and do not offset a new fence by eye as revenge. If the strip is wide, or if a wall or slab is involved, read your state Act and get advice before you spend money on a structure that might have to move.