Fencing and encroachment disputes are among the most common disagreements between South Australian neighbours, and they tend to get harder to resolve the longer the underlying process is ignored. Two different areas of property law can apply depending on what is actually in dispute, and using the wrong process can waste time and cost you options.
WPI Lawyers advises Adelaide property owners on dividing fence disputes, encroachments and related boundary disagreements, from the first notice through to negotiation, mediation or a Magistrates Court application.
Fencing, encroachment and boundary disputes are not the same problem
People often use “boundary dispute” loosely to describe several different situations. Which process applies depends on what is actually happening on the ground.
Dividing fence disputes
An ordinary dividing fence between two properties is governed by the Fences Act 1975 (SA). This covers who should contribute to a new or replacement fence, the notice process for proposing work, and what happens if a neighbour disagrees or does not respond.
Encroachments
An encroachment is a different problem. It occurs when a permanent structure — a garage, shed, carport, driveway, retaining wall or part of a building — extends over the boundary onto a neighbouring property. Encroachments are dealt with under the Encroachments Act 1944 (SA), which is separate legislation with its own remedies and its own court pathway.
Boundary-location uncertainty
Sometimes the real issue is not who should pay for a fence, but where the legal boundary actually sits. An existing fence line does not always match the surveyed boundary, particularly on older allotments. A registered survey is usually the only reliable way to resolve genuine uncertainty about where a boundary falls, and it is worth confirming before spending money on notices or negotiations based on the wrong assumption.
The dividing fence notice process
Start with a conversation, then put it in writing
Most fencing situations start informally. Where an early conversation does not resolve things, or where you want a documented process, the Fences Act sets out a formal notice procedure that protects your position and creates a clear record if the matter later needs to go further.
Giving formal notice
Formal notice is given in writing and should set out what work is proposed — a new fence, a replacement, or repair — along with enough detail for your neighbour to understand and respond to the proposal. Notice is usually served personally or by registered post so there is a clear record of when it was given.
If your neighbour objects, or does not respond
Your neighbour has an opportunity to respond or object once notice is properly given. If they object, the disagreement needs to be resolved through negotiation, mediation, or ultimately an application to the Magistrates Court. If they simply do not respond within a reasonable period, that silence can carry legal consequences — but getting this step wrong is one of the most common ways a straightforward fencing matter turns into a dispute, so it is worth having the notice checked before you rely on it.
Who pays for a dividing fence
A dividing fence is generally treated as a shared asset of both adjoining owners, and the starting position under the Fences Act is that both owners contribute to a sufficient dividing fence. That default position can shift in a number of situations — for example, where one owner wants a fence built to a higher standard than is necessary, where the benefit of the fence clearly favours one property over the other, or where a fence needs urgent repair after storm or accident damage. We can assess your specific situation and advise where the usual cost-sharing position is likely to apply, and where it is not.
When a fencing dispute goes to court
Most fencing disputes are resolved through the notice process or through direct negotiation, without ever reaching a courtroom. Where agreement genuinely cannot be reached, either owner can apply to the Magistrates Court of South Australia (Minor Civil Claims Division) for orders under the Fences Act. A well-prepared application relies heavily on the paper trail from earlier steps — the notices given, any objections raised, quotes obtained and correspondence exchanged — which is why keeping clear records from the outset matters, even if you are hoping to avoid court altogether.
Encroachments: when a structure crosses the boundary
Encroachment disputes usually surface during a sale, a renovation, or a new survey, when it becomes clear that a structure sits partly or wholly on a neighbouring title. Under the Encroachments Act, the court has a range of remedies available depending on the circumstances — these can include ordering the structure removed, ordering compensation to be paid, or in some cases allowing the encroaching owner to acquire or lease the affected land. Which outcome is realistic depends heavily on how the encroachment happened, how long it has existed, and what each owner is trying to achieve, so early advice before positions harden is genuinely useful here.
Boundary uncertainty, surveys and long-standing occupation
Where the location of a boundary itself is unclear or disputed, a registered survey is the starting point for any sensible resolution. Separately, there is a distinct legal concept — often referred to as adverse possession — that can apply in limited circumstances involving long-standing occupation of land beyond a title boundary. It is a narrow and technical area, particularly for Torrens title land in South Australia, and should not be assumed to apply without specific advice on your circumstances.
How we help
We provide practical, structured guidance at each stage of a fencing or encroachment matter:
- Reviewing your situation and identifying which legal pathway actually applies — fencing, encroachment, or boundary location.
- Preparing or reviewing formal notices so they are valid and defensible if challenged.
- Advising on cost-sharing positions and likely outcomes before you commit to a course of action.
- Supporting negotiation or mediation with your neighbour where that is the more practical path.
- Preparing Magistrates Court applications where agreement cannot be reached.
Frequently asked questions
Does the existing fence always mark the legal boundary?
Not always. Fence position and the surveyed legal boundary can differ, especially on older allotments, so it is worth confirming the actual boundary before relying on an existing fence line.
Can I go ahead with fencing work without my neighbour’s agreement?
Formal notice requirements generally apply before work proceeds, so it is worth getting advice on the correct process first rather than risking a dispute over a step that was skipped.
Who has to pay for a new or replacement dividing fence?
The general position is that both neighbouring owners contribute, but this can shift depending on the standard of fence proposed and who benefits from it. We can assess your specific situation.
What is the difference between a fencing dispute and an encroachment?
A fencing dispute is about an ordinary dividing fence under the Fences Act. An encroachment involves a permanent structure — such as a garage, shed or driveway — extending onto a neighbour’s land, and is dealt with under separate legislation.
What can I do if a neighbour’s structure crosses onto my land?
This is generally an encroachment issue rather than a fencing issue, and the available remedies differ. Early advice helps you understand your realistic options before the situation becomes entrenched.
Do I need a lawyer, or can I represent myself?
Many people do represent themselves in fencing matters, but getting the earlier notice and evidence steps right significantly affects how a dispute plays out, which is where early advice is most valuable.
When should I get advice?
As early as practical — ideally before formal notices are sent or objections are raised, so your position is properly protected from the outset.
If you are dealing with a fencing dispute, an encroachment, or uncertainty about where your boundary sits, contact WPI Lawyers for practical guidance. Boundary issues can also become relevant where they affect land held within a deceased estate — see our Wills & Estates services — or where co-owned property is being divided as part of a property settlement.