Everyone wants to be good neighbours and when they aren’t, life can be hell. It’s not until something goes wrong with a tree, fence, noisy dog, noisy neighbour or retaining wall that relationships can turn sour.

Fences are the No.1 cause of disputes among neighbours. The Dispute Settlement Centre of Victoria (DSCV) found that 38 per cent of the neighbourhood disputes were over fences.

A timber fence that was erected 40 years ago when the land was subdivided may now be showing signs of rot. According to the law, neighbours have to come to a solution on a “sufficient dividing fence” and pay half each.

Disagreements arise when neighbours are deciding if it should be fixed, replaced, what the colour or height should be and the cost. One neighbour may think it would be fine to fix a few palings, while the other may want the whole side replaced.

Problems also arise with agreeing to what is “sufficient”. The fence may need to be higher for one neighbour due to privacy, or to contain a pet. If one neighbour wants a fence that is more expensive, then they have to pay more than the other neighbour, which again can lead to arguments.
Find out about your rights under the law and remedies with fencing – HERE

Amanda Hickey is a mediator and helps neighbours come to a resolution. She finds many fencing disputes are about where to erect them and getting a surveyor to determine the exact boundary line, which costs money that no one wants to pay.

“You find older people stay in their house for a long time. They seem to be attached to their fences and they have a whole story about why it should be in spot X but it’s in spot Y,” she says.

Noise complaints come in second place as a cause for frustration for neighbours.
In NSW, 18 per cent of all neighbourhood disputes handled by the Community Justice Centre (CJC) were noise-related and of those, 57 per cent were barking dogs.

If the noise is late at night or very loud and excessive, the police can be called. But what if the dog barks every morning when the owners leave for work?

What if the neighbour’s child starts to learn the drums and plays every afternoon when the nearby baby is trying to sleep?

Power tools in the early morning and air conditioners running all night are other causes of friction.
And of course there is the endless barking and carry on from some unneighbourly dogs.
Find out about what you can do about neighbour noise – HERE
And crazy out of control dogs – HERE

The third largest cause of friction among neighbours is trees. In Victoria, complaints concerning trees account for 17 per cent of all disputes. A jacaranda planted 15 years ago may look lovely until the branches start growing over the neighbour’s fence, blocking views.

In 2017, of all NSW tree disputes, 68 per cent were applications concerning a tree causing damage to a property or injury to a person, while 32 per cent were applications concerning a hedge severely obstructing sunlight or views.
Even a beautiful jacaranda tree can cause neighbourly disputes.
Also, root systems don’t adhere to property boundaries. Roots can grow under fences and disrupt the pipes of neighbouring households.

There are no simple rules about who is responsible for pruning or cutting down a tree that affects neighbours, which can cause more disagreements.
Check out your legal rights and remedies concerning trees and fences – HERE

Adrian Mueller is a strata lawyer and finds the fourth, and the most difficult, dispute among neighbours is retaining walls.

The lack of legislation and the expense to fix a retaining wall means neighbours can spend a long time in court trying to come to an amicable resolution.

“They take a long time as there is a lot at stake. If it is about to collapse, one day there is a big storm and it comes crashing down,” he says. “The clock is ticking, it is not covered by insurance and no one wants to pay for it.”

With thanks to Melissa Gerke

While de facto couples may be able to assert some of the same rights as married couples, they often have to expend significant time, money and unnecessary heartache to do so. Marriage allows people to access a complete package of rights simply by showing their marriage certificate or ticking a box, and is based on their mutual promises to one another rather than proving their relationship meets particular interdependency criteria. Unlike de facto relationships, marriage is recognised nationally and internationally

Differences under the law
The laws regarding de facto couples differ between states and the commonwealth, and from one right to another.

For Centrelink purposes, you are a de facto couple from the moment you start living together; for migration law it is after 12 months of cohabiting (unless you have a child together or de facto relationships are illegal in your country of origin).

Under family law it is different again: a minimum of two years (unless you have a child together, have registered your relationship, or have made significant contributions to the relationship)
Where married couples use IVF, both spouses are automatically legal parents. But for de facto couples using reproductive technologies, their child’s parentage depends on whether a de facto relationship is proven to exist.

The laws regarding de facto couples differ between states and the commonwealth, and from one right to another.

For Centrelink purposes, you are a de facto couple from the moment you start living together; for migration law it is after 12 months of cohabiting (unless you have a child together or de facto relationships are illegal in your country of origin).

Under family law it is different again: a minimum of two years (unless you have a child together, have registered your relationship, or have made significant contributions to the relationship).

Where married couples use IVF, both spouses are automatically legal parents. But for de facto couples using reproductive technologies, their child’s parentage depends on whether a de facto relationship is proven to exist.

Couples who are or were married must file for property and/or spousal maintenance proceedings in the family court within one year of finalising a divorce, but have the option to agree to an extension of time in which to file. No such provision exists for de facto couples; they must file proceedings within two years.

In many states, a new marriage nullifies an existing will, unless that will was quite specifically worded. This is not the case when you enter a new de facto relationship. In the latter situation, if you die before making a new will, a court might need to decide how your assets are allocated (with costs borne by your estate).

In all contexts, de facto relationships require significant proof, which means partners may have to provide evidence about their living and childcare arrangements, sexual relationship, finances, ownership of property, commitment to a shared life and how they present as a couple in public. These criteria can be absent from a heterosexual marriage, but it is still deemed a marriage.

Despite the wording in the marriage ceremony that marriage “is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”, it is up to married partners whether or not they share their finances, their housework, their childcare responsibilities, their homes or their beds, and how long they want to stay married.

De facto relationships require significant proof, which means partners may have to provide evidence about their living and sexual relationship, criteria absent from a heterosexual marriage.

‘Registered relationships’ – separate but equal?
Many states and territories have legislation permitting couples to register their domestic relationships – the exceptions are the Northern Territory and Western Australia.

To register, you first need to prove that you meet the criteria – for example, providing “personal or financial commitment and support of a domestic nature for the material benefit of the other”. Where marriage delivers rights based on a couple’s promises to one another, registered relationships still require proof that a relationship meeting the criteria already exists.

Such registered relationships are not reliably recognised overseas.

When does it matter?
While married and de facto relationships largely have equal standing before the law, only marriage is immediate and incontrovertible.

Difficulties for de facto couples arise from the complex inter-relationship between the “burden of proof”, institutionalised homophobia, and the sticky situations that can often arise in interpersonal or family conflict.

For example, a person in a de facto relationship might need to prove their relationship:

♥  if their partner is very ill, in order to make decisions about their care and treatment (this can be prevented by having another piece       of paper – an enduring power of attorney);
♥  if their partner who has died, in order to be listed as their spouse on a death certificate or to be involved in funeral planning (being       listed on a death certificate is critically important when it comes to claiming superannuation payouts and myriad other issues); or
♥  if their partner has died without leaving a will.

Sadly, the times when marital status matters most are likely to be times of grief or high stress. To compound this, there are many examples of a couple’s de facto status being challenged by one partner’s family of origin. Marriage, on the other hand, is undeniable.

Unmarried de facto couples often experience difficulties attaining residency and/or working rights overseas. Married couples rarely experience these problems.
Prior to marriage equality laws being passed in Australia, same-sex couples  had all the same obligations as married couples – to pay taxes, child support and so on. But they didn’t have the ability to marry – to enjoy the symbolic and emotional effects of entering into a legal union with their partners before friends and family, or enjoy the legal security of having one document to confirm the legal status of their relationship. 

So de facto status is slightly different to being married, but at the end of the day it is up to the couple to decide which alternative best works for them.

With thanks to Hannah Robert, Fiona Kelly and The Conversation.

For more information on marriage, de facto relationships, separation and divorce…
Head over to our fabulous Legal Eagle info page >>> HERE

There are always lots of neighbour issues when you live in an apartment.

The people upstairs come home when the pubs shut and then party till 3am every weekend. The nice young woman downstairs goes out to work, leaving her little dog to yap all day until she comes home. The young fellas on the floor below clearly have never learned what their stove is for, so every night is barbie night – preceded by the ritual burn-off of old fat, the smoke and stink from which pours into your apartment.

“Ah, well, that’s apartment living,” you tell yourself as you turn up the volume of your stereo to full “doof” to drown out the sound of the 12-year-old next door practising her clarinet for an hour every evening. By the way, your music is now keeping the shift-working nurses on the other side awake.

Is that really what we have to put up with when we live in apartments? There should be some give and take, but there are also limits

Most states have laws that would curb the weekend party animals regardless of where they lived. After midnight you can call the cops and your neighbours could be fined and even have their stereo gear impounded.

And there are by-laws in apartment blocks that limit excessively loud music all day, not just late at night. That includes little Miss Clarinet squeaking her way through the first few bars of Rhapsody In Blue.

The yappy dog is almost certainly breaching by-laws, not to mention local council ordinances. The barbie boys are creating a nuisance (although proving it may be tricky).

In fact, all of these scenarios involve some breach – some of them several – but who wants to be the apartment block grinch by complaining?

Do you really want to bump into the blokes from downstairs, now seriously undernourished because their landlord has ordered them to ditch the barbie? Are you prepared to wear the guilt of ruining a child’s musical ambitions (or, at least, her parents’)?

Taking The Middle Ground
However, there may be a compromise and the way to achieve that is by talking. The people above, below and next to you have no idea how loud the noise they are making sounds in your flat.

The blokes downstairs have no concept of where their barbie smoke goes and how bad it smells when it gets there (OK, they’re not that bright). The woman whose dog barks while she’s at work, doesn’t know … she’s at work, after all.

That said, talking isn’t always an option because no one likes to be confronted by an irritated neighbour at their front door. And in some blocks you can’t even get to other floors, anyway.

However, the anonymous note is a particularly irritating form of communication.

So a friendly chat before you complain has to be a better option. And perhaps the way to open the discussion is to offer a gift with a note attached.

A card saying: “Can we talk about your barbecue …?” attached to a box of chocolates or bottle of drinkable red will at least show you are not the negative namby-pamby nimby they might otherwise assume you are.

To be fair, there are people who live in apartments whose response will be “I can do what I want in my home and if you don’t like it, tough…!”

In which case, you have been given licence to unleash the “dogs of strata” war, in the form of by-law breach notices, complaints to the police and letters to landlords if they’re tenants. However these by-laws are difficult to implement and notices to offenders often lead back to mediation before they are heard in a court.

What can a body corporate do in these cases?

If a body corporate believes that an owner or occupier is breaching the by-laws, the body corporate can speak to the owner or occupier informally to try to fix the issue.

If that doesn’t work, the first formal step under the Body Corporate and Community Management Act 1997 is for the body corporate to give a by-law contravention notice to the person it believes is breaching the by-laws.

The decision to give a by-law contravention notice can be made by the committee, or the body corporate at a general meeting.

The body corporate usually cannot take action to enforce the by-laws until it has sent a by-law contravention notice.

The body corporate can give a ‘continuing contravention notice’ to an owner or occupier if it believes that they are breaching a by-law, and it is likely that this will continue.
(So that first contravention notice acts as an official warning for that owner to remedy the situation.)

An example of this type of breach is where an owner has made a change to the outside look of their lot without the approval required in the by-law or they have an animal that is constantly annoying other residents because of its noise.

The purpose of the notice is to ask the person to fix the problem within a certain time.
The notice must:

♦ say that the body corporate believes the person is breaching a by-law
♦ detail the by-law that the body corporate believes is being breached
♦ explain how the by-law is being breached
♦ set a time period for the person to fix the problem
♦ explain that if the person does not comply the body corporate may:
◊ start proceedings in the Magistrates Court
◊ make a conciliation application (mediate the matter).

The body corporate will need to fund any legal fight and costs can mount, so again the conciliation/mediation pathway is probably going to be the least costly. Of course, you do need the cooperation of a potentially stubborn neighbour in this case.
(BTW You may get costs awarded if you win but such an award may not cover all your legal costs.)

With thanks and acknowledgement to J Thomson for his contribution to this post.

Barking dogs, problem fences, loud noise and disgusting smells from neighbours?
Check out all the solutions, and your legal rights HERE.