INTERNATIONAL JOURNAL OF RESEARCH AND INNOVATION IN SOCIAL SCIENCE (IJRISS)

ISSN No. 2454-6186 | DOI: 10.47772/IJRISS | Volume IX Issue XI November 2025

Between Private Ordering and Public Regulation: Reassessing the

Legal and Governance Framework for Boundary Fences in Malaysia

Aminurasyed Mahpop* & Asma Hakimah A. Halim

Faculty of Law, Universiti Kebangsaan Malaysia

*Corresponding Author

DOI: https://dx.doi.org/10.47772/IJRISS.2025.91100325

Received: 29 November 2025; Accepted: 08 December 2025; Published: 09 December 2025

ABSTRACT

Boundary fences are central to neighbour relations in Malaysia, yet they exist within a fragmented and largely

unregulated legal framework. The National Land Code 1965 is silent on fence-related obligations, and municipal

by-laws regulate only technical aspects, leaving substantive responsibilities undefined. This gap—combined

with institutional fragmentation and reliance on private negotiation—produces frequent disputes and

inconsistent outcomes. Using Property Rights Theory, Neighbour Law, and Regulatory Governance Theory, this

article analyses Malaysia’s legal deficiencies and compares them with established frameworks in Australia, the

United Kingdom, Singapore, and Hong Kong. The comparative insights illustrate how structured procedures,

cost-sharing rules, and accessible tribunals reduce conflict. The article proposes a multi-tiered reform model,

including a Boundary Fences Act, harmonised national standards, notice-and-consent mechanisms, and tribunal-

based dispute resolution. A coherent regulatory framework is essential for promoting legal certainty, neighbour

harmony, and effective governance in Malaysia’s urban residential environment.

Keywords: Boundary fences; neighbour disputes; property law; local authorities; regulatory reform; Malaysia.

INTRODUCTION

Background and Significance

Boundary fences are a fundamental element of residential property ownership, serving as physical markers that

delineate land, signal control, and shape the spatial extent of proprietary rights. Scholars widely acknowledge

that physical boundary structures express ownership, territoriality, and exclusion (Honoré, 1987; Ellickson,

1991). These structures also perform critical social functions, shaping expectations of privacy, security, and

neighbourly interaction within residential environments (Gehl, 2011; Blomley, 2005).

However, in Malaysia, the legal governance of boundary fences remains significantly underdeveloped. Although

the National Land Code 1965 establishes cadastral boundaries with precision, it provides no guidance on the

placement, construction, or status of boundary fences—a doctrinal silence that creates uncertainty in practice

(Teo, 2019; Foo, 2016). Local governments regulate fence height and materials through by-laws such as Rule

98, but these provisions address only technical specifications and fail to regulate neighbour obligations,

cooperative responsibilities, or dispute-resolution pathways (MBPJ, 2018; Abdul Aziz, 2014).

Consequently, homeowners rely heavily on private ordering, informal norms, and personal negotiation, despite

evidence that such mechanisms are insufficient in diverse, high-density, and modern residential settings

(Ellickson, 1991; Steele & Tulkens, 2021). When disputes arise—often concerning encroachment,

misalignment, height, or unilateral replacement—parties are forced to turn to tort law and litigation, which is

reactive, adversarial, and costly, making it poorly suited for routine neighbour conflicts (Morgan, 2010; Lee,

2020).

These legal and governance gaps are increasingly problematic as Malaysia becomes more urbanised and socially

heterogeneous. Urban planning scholars note that physical proximity without clear behavioural rules increases

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INTERNATIONAL JOURNAL OF RESEARCH AND INNOVATION IN SOCIAL SCIENCE (IJRISS)

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the likelihood of neighbour conflict, especially where institutional support is weak (Low, 2003; Talen, 2019). In

such contexts, the absence of a coherent boundary-fence framework creates uncertainty, inconsistent

administrative responses, and preventable disputes (Baldwin, Cave, & Lodge, 2012).

This study is therefore significant because it addresses a long-standing yet under-researched area of Malaysian

property and land governance. By examining both doctrinal and institutional dimensions, and by drawing on

comparative insights from jurisdictions with established neighbour-management legislation, the study aims to

offer an evidence-based foundation for reform. It responds to the broader scholarly recognition that land

governance must integrate both legal clarity and social functionality in order to support stable, harmonious

residential environments (Ben-Shahar & Porat, 2017; Ostrom, 1990).

Problem Statement

Despite the central role that boundary fences play in defining property limits, facilitating neighbour relations,

and supporting residential harmony, Malaysia lacks a coherent and comprehensive legal framework to regulate

them. The National Land Code 1965, while providing precise cadastral boundaries, contains no provisions

governing the placement, construction, maintenance, or legal status of boundary fences (Teo, 2019; Foo, 2016).

This statutory silence creates a disconnect between the legal boundary and the physical boundary, leaving

homeowners without guidance in managing shared perimeter structures.

Local authorities regulate boundary fences primarily through technical by-laws, such as height limits, material

specifications, and building design rules (MBPJ, 2018; Abdul Aziz, 2014). However, these by-laws do not

address substantive neighbour obligations—including notice, consent, cost-sharing, or maintenance duties.

Scholars note that purely technical regulations cannot function as effective governance tools when relational or

cooperative duties are absent (Baldwin, Cave, & Lodge, 2012).

In practice, Malaysia therefore relies heavily on private ordering, where neighbours negotiate informally to

manage boundary issues. However, private ordering is effective only where social norms are strong,

communities cohesive, and disputes limited (Ellickson, 1991). Contemporary Malaysian neighbourhoods—

characterised by increasing density, mobility, and cultural diversity—lack the interpersonal cohesion required

for private ordering to function reliably (Talen, 2019; Low, 2003). As a result, informal negotiations often fail,

leading to escalating tensions.

When negotiations break down, homeowners turn to tort law—especially trespass, nuisance, and negligence—

as the default mechanism for resolving boundary disputes. Yet tort law is inherently reactive and adversarial,

offering remedies only after harm occurs and requiring costly litigation (Morgan, 2010; Lee, 2020). It provides

no preventive structure, no procedural safeguards, and no guidance for cooperative behaviour. This reliance on

litigation is inefficient and socially disruptive, particularly for disputes involving minor encroachments or

maintenance disagreements.

Institutionally, boundary fence issues fall between agencies. Land offices manage cadastral boundaries but

decline involvement in physical fence disputes (Teo, 2019). Local councils regulate fence height but lack

jurisdiction over neighbour conflicts (Abdul Aziz, 2014). Courts adjudicate disputes but repeatedly note the

absence of statutory guidance. Governance scholars describe such situations as institutional fragmentation,

where overlapping but incomplete mandates produce gaps in regulatory coverage (Baldwin et al., 2012; Lodge

& Wegrich, 2014).

Consequently, Malaysia faces an environment in which:

●

legal rules are fragmented,

institutional roles are unclear,

private ordering is unreliable,

judicial remedies are costly, and

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●

preventive governance is non-existent.

This fragmented framework not only increases the incidence of neighbour disputes but also undermines the

practical exercise of property rights and public confidence in land governance systems.

Research Objectives

This study aims to examine and reassess Malaysia’s fragmented legal and governance framework governing

boundary fences, with the broader goal of proposing a more coherent and preventive system. Specifically, the

study seeks to analyse the existing doctrinal landscape by evaluating the National Land Code 1965, local

authority by-laws, and relevant tort and case law to determine the extent to which current rules adequately

regulate the construction, placement, and management of boundary fences. It further aims to investigate the

institutional and governance dimensions of boundary fence regulation, including the roles, limitations, and

coordination challenges faced by land offices, local authorities, survey departments, and the courts. By

identifying the doctrinal, procedural, and institutional gaps that contribute to recurring neighbour disputes and

administrative inconsistencies, the study intends to articulate a clear diagnosis of the systemic weaknesses within

Malaysia’s current framework. Finally, through a comparative analysis of established governance models from

the United Kingdom, Australia, Singapore, and Hong Kong, the study aims to formulate evidence-based

recommendations for legislative and policy reforms, with the objective of developing a structured, equitable,

and administratively workable boundary fence governance system for Malaysia.

Scope of Study

This study focuses on the governance of boundary fences within the context of landed residential properties in

Peninsular Malaysia, which fall under the National Land Code 1965. The analysis is limited to physical boundary

structures such as fences, walls, railings, and hedges that demarcate adjoining private lots, and does not extend

to internal partitions within strata schemes, which are governed by the Strata Management Act 2013. The study

examines the legal instruments most directly relevant to boundary management—including the National Land

Code, local authority planning and building by-laws, tort principles, and judicial decisions—while excluding

contractual arrangements unique to gated communities or private developer covenants. As the study adopts a

doctrinal, administrative, and comparative approach, it does not rely on empirical fieldwork or survey data;

instead, it synthesises statutory materials, case law, governmental documents, and academic literature. In its

comparative component, the study examines selected common law jurisdictions—the United Kingdom,

Australia, Singapore, and Hong Kong—chosen for their relevance to Malaysia’s legal heritage and governance

structures. The scope is therefore carefully defined to ensure conceptual clarity, jurisdictional relevance, and

analytical depth, while maintaining a clear focus on the regulatory gaps and governance challenges surrounding

boundary fences in Malaysia.

Significance of Study

This study is significant for its contribution to Malaysian land law, property governance, and neighbour-relations

regulation in several important respects. First, it provides a comprehensive doctrinal analysis of boundary fence

regulation—an area that has received limited scholarly attention despite its practical relevance in everyday

property ownership. By synthesising statutory provisions, local authority by-laws, tort principles, and judicial

decisions, the study clarifies a legal landscape that is currently fragmented and poorly understood by both

practitioners and homeowners. Second, the study offers a governance-oriented assessment of institutional roles

and regulatory practices, highlighting how gaps and overlaps between land offices, local councils, and the courts

contribute to inconsistent enforcement and ineffective dispute management. This aligns with broader scholarship

emphasising the need for coordinated and preventive governance mechanisms in property regulation. Third, by

examining how comparable common law jurisdictions have structured neighbour-management regimes, the

study generates policy-relevant comparative insights that can inform Malaysia’s legislative development.

Finally, the study is practically significant: it addresses a recurrent source of neighbourhood tension and proposes

a clearer, more predictable framework that can reduce disputes, enhance administrative efficiency, and

strengthen public confidence in land governance. Collectively, these contributions demonstrate the relevance of

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the research not only to academic discourse but also to policymakers, regulators, legal practitioners, and

Malaysian homeowners.

LITERATURE REVIEW

Conceptual Foundations of Boundary Fences

The concept of a boundary fence is rooted in broader understandings of property, ownership, and territorial

control. In classical jurisprudence, ownership is frequently conceptualised as a bundle of incidents, including

the rights to exclusive use, control, and security over a thing (Honoré, 1987). Land law scholars have similarly

emphasised that property in land conveys not only legal title but also a deeply embedded sense of spatial

belonging and control over a defined area (Gray & Gray, 2009; Hodgson, 2013). Within this framework, fences

and walls function as material manifestations of the right to exclude and as visible signals of the boundaries of

private entitlement (Blomley, 2005).

From a spatial and socio-legal perspective, boundary structures operate at the intersection of legal ordering and

lived space. Gehl (2011) highlights how physical delineations in the built environment organise social interaction

by controlling visibility, access, and movement. Fences thereby influence the permeability of space, mediating

the relationship between public and private realms (Low, 2003; Blomley, 2016). At the neighbourhood scale,

boundary features also shape perceptions of safety and privacy, as residents associate clear demarcations with

security, control, and autonomy over their immediate surroundings (Talen, 2019; Gehl, 2011).

At the same time, fences and walls are inherently relational. They do not merely define “my land” and “your

land”, but also mark a shared interface where two proprietary spheres meet. Property theorists have therefore

argued that boundaries embody both exclusion and interdependence: they enable individual autonomy while

simultaneously requiring a degree of coordination between neighbours who must coexist along a shared line

(Ben-Shahar & Porat, 2017; Gray & Gray, 2009). This duality becomes particularly salient in urban and suburban

environments where lots are small, homes are proximate, and boundary decisions about height, materials, and

alignment have immediate impacts on neighbouring properties (Low, 2003; Talen, 2019).

Institutional scholars have further noted that boundaries are not self-enforcing; they require legal rules and social

norms to determine how they are drawn, marked, and respected (Ostrom, 1990). In the absence of clear

governance arrangements, boundary structures can become sources of contestation rather than stability. The

literature on common-pool resources and local governance underscores that when physical markers are not

supported by robust institutional frameworks, conflict and uncertainty are likely to arise (Ostrom, 1990; Baldwin,

Cave, & Lodge, 2012). This insight underpins much of the contemporary interest in how legal systems regulate

boundary structures between adjoining owners.

Boundary Fence Disputes and Neighbour Relations

Neighbour relations literature shows that disputes over fences, walls, and hedges are among the most common

triggers of interpersonal conflict in residential communities. Ellickson’s (1991) seminal study of Shasta County

demonstrated that neighbours routinely confront conflicts arising from boundary use, ranging from wandering

cattle to fence placement and maintenance. Although his empirical work focused on a rural American context,

the broader insight—that boundaries are frequent sites of dispute—is echoed in urban studies and property

scholarship more generally (Blomley, 2005; Talen, 2019).

Boundary fence disputes typically cluster around recurring issues: alleged encroachments, disagreement over

the “true” boundary line, dissatisfaction with fence height or appearance, unilateral demolition or replacement

of existing structures, and refusal to contribute to construction or repair costs (Ellickson, 1991; Gray & Gray,

2009). Where social cohesion is strong and neighbours share stable norms, informal resolution through private

negotiation and reciprocal adjustment may suffice (Ellickson, 1991; Ostrom, 1990). However, in diverse and

transient urban neighbourhoods—such as those increasingly found in contemporary cities—informal

mechanisms often prove fragile or ineffective (Low, 2003; Talen, 2019).

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Tort law plays a prominent role in much of the neighbour-relations literature. Nuisance, trespass, and negligence

are commonly invoked when one landowner’s boundary decisions allegedly interfere with another’s enjoyment

or security (Morgan, 2010; Lee, 2015). Private nuisance regulates unreasonable interferences, such as fences

that block light, divert water, or create structural instability, while trespass addresses physical intrusions where

structures cross the legal boundary (Morgan, 2010). Yet scholars have argued that tort law is structurally reactive:

it offers remedies after harm or dispute has arisen, but it does not establish the proactive rules necessary to guide

neighbour conduct ex ante (Lee, 2015; Ben-Shahar & Porat, 2017).

Socio-legal research also highlights the emotional and relational dimensions of boundary disputes. Conflicts

over fences often carry symbolic weight, as they are experienced not merely as technical disagreements but as

challenges to respect, recognition, and neighbourliness (Blomley, 2005; Low, 2003). Studies in planning and

urban sociology note that repeated or unresolved boundary disputes can erode social trust, contribute to

neighbourhood fragmentation, and generate lasting interpersonal hostility (Talen, 2019; Gehl, 2011). These

findings support the argument that an effective governance framework for boundary fences must go beyond

doctrinal rules to address the relational and procedural aspects of neighbour interaction.

Legal and Regulatory Context in Malaysia

The Malaysian literature on land law and local governance provides important insights into the structural context

within which boundary fences are regulated—or, more accurately, under-regulated. Doctrinal works on

Malaysian land law focus on the National Land Code 1965 (NLC) as the cornerstone of title registration and

boundary determination, emphasising the Torrens-inspired system of indefeasible title and cadastral certainty

(Teo & Khaw, 2012; Sihombing, 2005). These texts highlight that the NLC allocates responsibility for boundary

definition to survey authorities and land offices, but they also acknowledge the Code’s silence on the regulation

of physical boundary structures such as fences and walls (Teo & Khaw, 2012).

At the local government level, studies of urban governance in Malaysia note that municipal councils exercise

regulatory powers under the Local Government Act 1976 and the Street, Drainage and Building Act 1974,

primarily through subsidiary legislation such as the Uniform Building By-Laws 1984 (UBBL) (Abdul Aziz,

2014; Ainul Jaria Maidin, 2012). These by-laws contain detailed provisions on building control, structural safety,

and certain aspects of wall and fence construction, often including height limits and design specifications for

boundary structures. However, local government and planning scholarship has observed that such regulations

are principally technical and rarely address the relational or shared aspects of neighbour obligations (Abdul Aziz,

2014; Ainul Jaria Maidin, 2007).

The Malaysian tort literature explains how private law functions as a residual mechanism for resolving boundary-

related disputes. Commentaries on tort law in Malaysia discuss the application of trespass, nuisance, and

negligence in land-related conflicts, including those involving encroaching walls, unstable retaining structures,

and interference with drainage (Lee, 2020). Malaysian courts have generally followed common law principles,

yet case law analysis shows that judicial decisions focus on specific harms and factual disputes rather than

articulating a general framework for managing shared boundaries (Teo & Khaw, 2012; Lee, 2020).

Despite an expanding body of writing on Malaysian land administration, planning control, and local government,

there remains a notable absence of scholarship engaging directly with boundary fences as an integrated subject

of doctrinal and governance analysis. Most discussions treat boundary issues tangentially, such as in surveys of

land disputes, planning control, or neighbourhood conflict resolution, without examining fences as a distinct

policy and legal problem. This lacuna in the literature mirrors the doctrinal gaps in the legal framework itself.

Theoretical Framework

(a) Property Rights Theory

Property Rights Theory provides a foundational lens for understanding the legal and social significance of

boundary fences. Honoré’s (1987) classic analysis of ownership identifies a cluster of incidents—including the

right to exclusive use, the right to manage, and the right to security—that together constitute full ownership.

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Gray and Gray (2009) further argue that land ownership entails a powerful sense of territorial control over a

defined spatial area. From this perspective, boundary fences operate as visible, material reinforcements of these

incidents of ownership: they demarcate the spatial extent of exclusion, control access, and symbolise proprietary

autonomy (Gray & Gray, 2009; Blomley, 2005).

Nevertheless, property rights are not absolute; they are constrained by the rights of others and by public

regulation. Property theorists have long recognised that boundaries are also sites of obligation and

interdependence, where competing claims must be balanced (Ben-Shahar & Porat, 2017). In this sense, boundary

fences illuminate a fundamental tension in property law between individual autonomy and relational

responsibility, providing a useful entry point for examining how legal systems mediate between private

entitlements and collective or neighbourly interests.

(b) Neighbour Law and Nuisance Theory

Neighbour Law and Nuisance Theory focus on the relational dimension of property. Nuisance law regulates

unreasonable interferences with the use and enjoyment of land, and is frequently invoked in disputes involving

overbearing structures, unstable walls, or harmful alterations to boundary features (Morgan, 2010; Lee, 2015).

Classic nuisance scholarship emphasises the concept of reciprocity: each landowner must tolerate a certain level

of inconvenience arising from neighbouring uses, while the law intervenes when interference crosses the

threshold of reasonableness (Morgan, 2010).

However, scholars have noted that tort-based neighbour law is primarily reactive. It responds to harm rather than

structuring interactions in advance, and it does not typically impose procedural obligations such as notice,

consultation, or cost-sharing (Ben-Shahar & Porat, 2017; Ellickson, 1991). In the context of boundary fences,

nuisance and trespass doctrines offer remedies after a dispute arises, but they do not provide a framework for

preventive governance or cooperative decision-making. This limitation supports the need for complementary

regulatory mechanisms that address neighbour relations more systematically.

(c) Regulatory Governance Theory

Regulatory Governance Theory examines how laws, institutions, and administrative practices interact to produce

regulatory outcomes. Baldwin, Cave, and Lodge (2012) argue that effective regulation requires clarity of

substantive rules, coherence in institutional mandates, and reliable enforcement mechanisms. Lodge and

Wegrich (2014) similarly highlight that fragmented mandates and poor coordination can lead to governance

gaps, where no agency assumes full responsibility for a regulatory problem.

Applied to boundary fences, Regulatory Governance Theory draws attention to the distribution of authority

among land offices, survey departments, local councils, and courts, and to the absence of a central institution

tasked with overseeing shared boundary structures. It also foregrounds the importance of preventive regulation—

using procedures such as notice requirements, formal consultation, and early dispute resolution—to avoid

conflict rather than merely responding to it. Comparative regulatory scholarship shows that jurisdictions with

dedicated neighbour-law statutes often embed such mechanisms directly into legislation, thereby aligning

institutional responsibilities with clear procedural obligations (Baldwin et al., 2012).

(d) Integrated Analytical Lens

This study adopts an integrated theoretical framework that combines Property Rights Theory, Neighbour Law

and Nuisance Theory, and Regulatory Governance Theory. Property Rights Theory explains the significance of

fences as embodiments of ownership and territorial control; Neighbour Law and Nuisance Theory illuminate the

interpersonal disputes that arise along shared boundaries; and Regulatory Governance Theory exposes the

institutional and systemic conditions that determine how effectively these disputes are regulated. The integration

of these perspectives aligns with contemporary calls in socio-legal scholarship to analyse property problems at

multiple levels—doctrinal, relational, and institutional—rather than through a single theoretical lens (Ostrom,

1990; Ben-Shahar & Porat, 2017; Blomley, 2005).

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(e) Gaps in Existing Scholarship and Legal Framework

The literature reviewed above reveals several interrelated gaps. First, although there is substantial work on

Malaysian land law, local government, and planning, there is no systematic scholarly treatment of boundary

fences as a distinct subject of legal and governance analysis. Existing works mention boundary issues only

incidentally within broader discussions of land disputes, title registration, or planning control (Teo & Khaw,

2012; Abdul Aziz, 2014). Second, while tort commentaries describe how nuisance and trespass apply to

neighbour disputes, they do not explore the limitations of tort as a primary governance mechanism for routine

boundary issues (Lee, 2020; Morgan, 2010).

Third, there is a notable disconnect between international scholarship on neighbour-law frameworks—such as

statutory schemes for party walls and dividing fences in other common law jurisdictions—and Malaysian

doctrinal writing, which has yet to engage with these models in a sustained way (Ellickson, 1991; Baldwin et

al., 2012). Fourth, existing Malaysian literature has not systematically examined the implications of institutional

fragmentation, despite governance theory highlighting how overlapping but incomplete mandates can produce

regulatory vacuums (Lodge & Wegrich, 2014; Ainul Jaria Maidin, 2012).

Finally, there is little scholarly work proposing integrated reforms that combine doctrinal clarity, procedural

safeguards, and institutional coordination in the governance of boundary fences. This study seeks to address

these gaps by offering a multi-level analysis of the Malaysian framework, situating it within comparative

experience, and proposing a more coherent model for boundary fence regulation.

METHODOLOGY

This study adopts a qualitative doctrinal and governance-oriented methodology to examine the legal and

institutional framework regulating boundary fences in Malaysia. Doctrinal legal research forms the core

analytical approach, which entails identifying, interpreting, and synthesising primary legal sources such as

statutes, subsidiary legislation, case law, and legal principles (Hutchinson, 2010; Salter & Mason, 2007). This

method is appropriate because the research question concerns the adequacy, coherence, and gaps of the existing

legal framework, which are best understood through a systematic examination of legal texts and authoritative

sources. The study therefore analyses the National Land Code 1965, the Local Government Act 1976, the Street,

Drainage and Building Act 1974, and selected local authority by-laws—most notably the Uniform Building By-

Laws 1984 and municipal guidelines relating to boundary fences. Judicial decisions are also examined to

understand how Malaysian courts have treated disputes involving encroachment, nuisance, trespass, and

boundary demarcation, as case law provides insight into the interpretive and remedial approaches adopted by

the judiciary.

In addition to doctrinal analysis, the study employs governance analysis, which draws on the principles of

regulatory governance to evaluate how institutions interact, exercise authority, and contribute to regulatory

outcomes (Baldwin, Cave, & Lodge, 2012; Lodge & Wegrich, 2014). This approach is essential because

boundary fence regulation in Malaysia involves multiple overlapping bodies—land offices, survey departments,

local authorities, and the courts—whose fragmented mandates influence how disputes are managed. Governance

analysis enables the study to assess the extent of institutional coordination, administrative effectiveness,

enforcement capacity, and the presence or absence of procedural mechanisms such as notice requirements,

consultation duties, and administrative dispute resolution.

The study also incorporates comparative legal analysis, examining boundary-governance frameworks in the

United Kingdom, Australia, Singapore, and Hong Kong. Comparative analysis serves two purposes: first, to

identify structural elements of effective neighbour-law regimes—such as statutory duties, surveyor mechanisms,

tribunal processes, and cost-sharing rules—and second, to evaluate their potential relevance and adaptability to

the Malaysian context (Zweigert & Kötz, 1998; Örücü, 2006). The selected jurisdictions share common law

foundations with Malaysia and have well-developed statutory regimes governing party walls or dividing fences,

making them suitable for functional comparison.

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In addition, document analysis is used to examine secondary materials, including academic literature, planning

guidelines, local authority policies, and land administration reports. Document analysis allows triangulation of

findings and enhances the depth of understanding regarding administrative practices, socio-legal dynamics, and

the practical challenges faced by homeowners and enforcement bodies (Bowen, 2009).

The methodology prioritises validity through triangulation—comparing doctrinal, governance, and comparative

insights—and aims for reliability through systematic sourcing and transparent reasoning. However, the study

recognises its limitations: it does not include empirical fieldwork such as interviews or surveys, and therefore

relies primarily on text-based evidence. Nonetheless, doctrinal and governance analysis remains appropriate and

sufficient for identifying structural gaps and proposing legal reforms.

FINDINGS AND DISCUSSION

Doctrinal Findings: The Malaysian Legal Landscape

The doctrinal analysis reveals that Malaysia’s legal landscape governing boundary fences is fragmented,

incomplete, and insufficiently equipped to regulate neighbour relations relating to boundary structures. Although

the National Land Code 1965 (NLC) provides a robust system of cadastral boundary determination, clarity of

title, and spatial certainty, it is silent on the status, construction, maintenance, and legal implications of physical

boundary fences. This statutory silence creates a structural gap between the legal boundary (as surveyed and

registered) and the physical boundary (as built by homeowners). Scholars of Malaysian land law have noted that

while the NLC contains detailed provisions on boundary ascertainment, it does not extend to regulating shared

physical structures, leaving homeowners without statutory guidance in managing fences or walls along common

boundaries (Teo & Khaw, 2012; Sihombing, 2005).

Local authorities attempt to fill part of this regulatory vacuum through planning and building by-laws enacted

under the Local Government Act 1976 and the Street, Drainage and Building Act 1974. These by-laws—

particularly the Uniform Building By-Laws 1984 (UBBL)—contain technical requirements relating to height,

openness, and materials. Certain municipal councils also issue planning guidelines (e.g., MBPJ’s Boundary

Fence Guidelines) specifying permissible fence designs. However, these rules only regulate the physical

characteristics of fences, not the relational obligations between adjoining owners. They do not prescribe duties

of notice, consultation, consent, cost-sharing, access for repairs, or procedures for removing or modifying

existing fences. Scholars in local governance and planning law have highlighted that such by-laws are

administrative and technical in nature, not relational or cooperative (Abdul Aziz, 2014; Ainul Jaria Maidin,

2012).

In the absence of statutory duties, the default regulatory mechanism becomes private law, particularly trespass,

nuisance, and negligence. While tort law provides remedies when a fence crosses a boundary, causes structural

harm, or interferes with neighbouring use and enjoyment, it is inherently reactive rather than preventative. Tort

law intervenes only after a dispute has escalated into actionable harm, requiring litigation—an adversarial,

costly, and time-consuming process. Tort scholars argue that neighbour disputes are poorly served by litigation

because courts resolve specific harms without articulating general rules or preventive standards (Morgan, 2010;

Lee, 2020). As a result, Malaysian case law on boundary structures is limited, inconsistent, and unable to provide

a coherent doctrinal framework.

Furthermore, doctrinal materials reveal that no statutory body is empowered to adjudicate minor boundary fence

disputes administratively. Land offices oversee cadastral surveys but disclaim responsibility for physical fences;

local councils enforce technical building rules but lack jurisdiction over neighbour disagreements; and courts

remain the only forum for dispute resolution. This doctrinal vacuum mirrors the governance fragmentation

discussed later in Section 4.2. As legal scholars on regulation note, such fragmented authority often results in

under-regulation, gaps in enforcement, and inconsistent outcomes (Baldwin, Cave, & Lodge, 2012; Lodge &

Wegrich, 2014).

Taken together, the doctrinal findings demonstrate that Malaysia’s existing legal framework lacks substantive

rules, procedural obligations, and institutional mechanisms to regulate boundary fences effectively. The absence

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of statutory guidance means that homeowners must rely on private negotiation and tort law, leading to

uncertainty, inconsistency, and preventable conflict.

(a) National Land Code 1965

The National Land Code 1965 (NLC) serves as the principal statute governing land administration, title

registration, and boundary determination in Peninsular Malaysia. Its Torrens-inspired system emphasises

indefeasibility of title, cadastral accuracy, and certainty of boundaries (Teo & Khaw, 2012; Sihombing, 2005).

Within this framework, the delineation of legal boundaries is treated as a technical, survey-oriented process

managed by the Director of Survey and Mapping (JUPEM) and the Land Administrator. Part IV of the NLC,

together with the Survey Regulations, sets out procedures for boundary definition, re-survey, and demarcation,

thereby ensuring that cadastral boundaries are ascertainable with precision. However, although the Code

establishes the legal boundary with considerable detail, it remains entirely silent on the regulation of physical

boundary structures, such as fences, walls, or hedges placed along or near the cadastral line.

The NLC’s silence reflects its historical orientation toward land registration and surveying rather than neighbour

relations or physical demarcations. Scholars of Malaysian land law note that the Code was drafted to secure

certainty in title and boundary identification, not to govern the social or physical manifestations of boundary

occupation (Teo & Khaw, 2012; Sihombing, 2005). As a result, while section 396 of the NLC empowers land

administrators to order boundary inquiries in cases of uncertainty or dispute over the cadastral line, these

provisions do not extend to disputes arising from the location, construction, maintenance, or unilateral

modification of physical fences. The Code therefore provides the “where” of boundary lines but offers no

guidance on the “what” or “how” of boundary structures.

This doctrinal gap is consequential. Because the NLC does not prescribe rules for boundary fences, adjoining

landowners must determine the construction or modification of fences privately. There is no statutory

requirement for one owner to obtain the consent of the other, no mandate for notice prior to construction, and no

rule on how costs should be shared for repair or replacement. In contrast, jurisdictions such as Australia and the

United Kingdom embed such duties directly into statutory neighbour-law regimes (Party Wall etc. Act 1996;

Dividing Fences Act 1991 (NSW)), demonstrating that Malaysia’s omission is an outlier and a source of

regulatory incompleteness.

The absence of statutory duties within the NLC is compounded by the lack of integration between cadastral and

physical boundaries. Malaysian cadastral plans indicate the legal boundary but do not show the location of

physical fences. This disconnect often leads to situations where fences are placed near but not on the boundary

line, or where landowners inadvertently encroach due to mistaken assumptions about boundary location (Foo,

2016). When disputes arise, parties frequently request land offices to intervene; however, land administrators

consistently take the position that they have no jurisdiction over physical structures unless the dispute concerns

the legal boundary itself. This institutional stance reflects the narrow statutory mandate of the NLC, which does

not extend to regulating the material expression of boundaries.

Malaysian courts have acknowledged the limitations of the NLC in dealing with physical boundary disputes.

Case law indicates that courts are often forced to rely on common law principles of trespass, nuisance, and

equitable remedies when fences encroach, collapse, or obstruct neighbouring land (Lee, 2020). However, such

judicial interventions are applied after the conflict has escalated, and they do not provide a preventive or

systematic solution. Courts have also emphasised that the NLC does not regulate fence placement, leaving them

without statutory guidance on how to allocate responsibilities between neighbours (Teo & Khaw, 2012). This

reinforces the structural consequences of the Code’s silence.

Legal scholars argue that a modern land governance framework must connect cadastral certainty with the rules

governing physical occupation of boundary spaces (Baldwin, Cave, & Lodge, 2012). The NLC’s failure to

regulate physical boundary structures therefore results in a doctrinal disconnect between public cadastral

regulation and private boundary use. In practice, this gap leaves homeowners uncertain about their rights and

obligations and contributes to the rising incidence of neighbour disputes—many of which could be avoided

through statutory duties of consultation, notice, or cost-sharing.

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In summary, the National Land Code 1965 provides an adequate framework for cadastral boundary

determination but offers no regulation of boundary fences, creating a structural gap that leaves adjoining

landowners reliant on private negotiation or tort law. This doctrinal finding highlights the need for legislative

reform to integrate property boundaries with their material expressions and to provide procedural obligations

that prevent disputes before they arise.

(b) Local Authority By-Laws

Local authorities in Malaysia derive regulatory authority over the construction of boundary structures from the

Local Government Act 1976 (Act 171) and the Street, Drainage and Building Act 1974 (Act 133). These statutes

empower municipal councils to enact subsidiary legislation—most notably the Uniform Building By-Laws 1984

(UBBL)—and to issue planning guidelines regulating the physical characteristics of boundary fences and walls.

However, while these instruments contain detailed technical standards, they do not regulate neighbour relations,

shared obligations, or procedural duties between adjoining owners. This doctrinal limitation results in a

regulatory framework that governs fences as structures, but not as shared boundary features requiring

cooperative governance.

The UBBL, enacted as a uniform code intended to be adopted by all local authorities in Peninsular Malaysia,

provides specifications on building safety, structural integrity, and design requirements. Certain provisions

govern aspects of fencing—for example, permissible heights, materials, and the requirement that structures must

not endanger public safety (UBBL, 1984). Municipal councils commonly adopt additional planning guidelines

that elaborate on these standards. For instance, Majlis Bandaraya Petaling Jaya (MBPJ) prescribes maximum

heights of 1.8 metres for solid boundary walls and 2.75 metres for fences that allow airflow and light penetration.

These rules reflect modern urban planning principles prioritising visual permeability and ventilation (MBPJ,

2018).

However, academic analyses of local government and planning law consistently highlight that these by-laws are

technical and administrative, not relational or substantive (Abdul Aziz, 2014; Ainul Jaria Maidin, 2012). They

regulate what can be built, not how adjoining owners should cooperate in relation to shared boundaries. As such,

the by-laws do not address:

●

whether an adjoining owner must be consulted before a fence is erected,

whether consent is required before replacing or altering an existing boundary fence,

how costs for construction or repair should be shared,

who is responsible for maintenance,

what procedures apply when one neighbour refuses to cooperate, or

how to resolve disagreements arising from fence placement or design.

The absence of relational duties is particularly evident when compared with analogous frameworks in other

common law jurisdictions. For example, Australia’s Dividing Fences Acts and the United Kingdom’s Party Wall

etc. Act 1996 impose statutory notice, consultation, and dispute-resolution obligations—elements completely

absent from Malaysian municipal by-laws (Baldwin, Cave, & Lodge, 2012; Ellickson, 1991). Malaysian by-

laws, by contrast, govern boundary structures from a construction-control perspective, not a neighbour-

governance perspective.

Furthermore, the non-uniform adoption of the UBBL and planning guidelines results in regulatory inconsistency

across local authorities. While the UBBL is intended to be adopted uniformly, municipal councils often modify,

supplement, or interpret the by-laws differently depending on local planning philosophies and administrative

priorities (Abdul Aziz, 2014). Some councils issue detailed boundary fence guidelines, while others provide

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none. This patchwork regulatory landscape contributes to uncertainty among homeowners and inconsistent

enforcement across local jurisdictions.

Empirical studies on Malaysian local authorities highlight capacity constraints that further limit the effectiveness

of by-laws. Local councils often prioritise major building works and safety issues rather than minor boundary

matters, resulting in weak enforcement and selective monitoring (Ainul Jaria Maidin, 2012). Because by-laws

do not regulate neighbour obligations, local authorities frequently decline to intervene in disputes between

adjoining owners, advising parties to resolve matters privately or to seek civil remedies. This institutional stance

reinforces the notion that boundary fence issues fall outside the purview of municipal governance, despite the

fact that fences significantly affect neighbourhood aesthetics, privacy, and interpersonal relations.

In practice, the regulatory gap created by the technical focus of by-laws forces neighbours into private ordering—

a system that is effective only when social norms are strong and relationships are cooperative (Ellickson, 1991).

In diverse and high-density urban settings, however, private ordering often breaks down, resulting in disputes

that escalate to litigation under tort law. Because municipal by-laws offer no guidance on neighbour

coordination, they unwittingly contribute to the systemic reliance on adversarial legal processes to resolve

routine boundary issues.

In sum, local authority by-laws in Malaysia provide a technical regulatory framework governing the physical

characteristics of fences but are entirely silent on relational, procedural, and cooperative aspects of shared

boundary governance. This doctrinal silence, combined with inconsistent adoption and weak enforcement,

contributes directly to the uncertainty, fragmentation, and conflict observed in the management of boundary

fences.

(c) Tort Law as Default Governance Mechanism

In the absence of statutory rules governing boundary fences, Malaysian homeowners frequently turn to tort law—

particularly the doctrines of trespass, nuisance, and negligence—as the primary legal mechanisms for resolving

disputes. Tort law thus functions as a default system of boundary governance, filling the regulatory vacuum left

by the National Land Code and local authority by-laws. While tort doctrines provide remedies for specific harms

arising from boundary structures, they are inherently reactive, individualised, and litigation-driven, making them

ill-suited as the main framework for managing routine neighbour interactions (Lee, 2020; Morgan, 2010).

Trespass to Land

Trespass is commonly invoked when a boundary fence encroaches onto neighbouring land. Under Malaysian

common law, any physical intrusion onto another’s land—however minor—is actionable per se. Courts have

consistently adopted a strict approach to boundary encroachment, requiring the removal of structures that cross

legal boundaries, even if the intrusion was inadvertent or minimal (Teo & Khaw, 2012). While this strict liability

model protects proprietary rights and reflects the sanctity of cadastral boundaries, scholars argue that it offers

no procedural safeguards such as notice or consultation prior to construction, thus allowing disputes to escalate

unnecessarily (Morgan, 2010). Moreover, remedying encroachment often requires landowners to file actions in

the High Court, making enforcement costly and time-consuming.

Private Nuisance

Private nuisance governs situations where a boundary fence interferes with a neighbour’s use or enjoyment of

land—for example, by blocking air or light, diverting drainage, or creating structural instability. Malaysian

courts typically assess nuisance claims using the “reasonableness” standard inherited from English law,

balancing the defendant’s use of their land against the plaintiff’s right to quiet enjoyment (Lee, 2020). However,

nuisance claims are fact-intensive, unpredictable, and costly to litigate; they also require plaintiffs to demonstrate

substantial and unreasonable interference, which is not always straightforward (Morgan, 2010). As a result,

nuisance law does little to clarify in advance what types of boundary fences are permissible or how neighbours

should cooperate in constructing or modifying them.

Negligence and Structural Harm

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Negligence claims may arise when poorly constructed or poorly maintained boundary fences collapse, cause

injury, or create foreseeable risks. Malaysian courts apply general negligence principles, requiring plaintiffs to

show duty of care, breach, and causation. Yet scholarly commentary suggests that negligence is an inadequate

tool for routine boundary management, as it applies only when physical damage or personal injury occurs (Lee,

2020). It does not articulate standards for preventive maintenance or mutual responsibilities, leaving

neighbouring landowners without clear guidance on how risks should be shared or mitigated.

Limitations of Tort Law as a Governing Regime

Collectively, tort doctrines demonstrate several structural limitations when relied upon as the primary

governance mechanism for boundary fences:

1. Tort law is reactive, not preventive.

It provides remedies only after harm occurs, offering no framework for preventing disputes through notice,

consultation, or negotiated coordination (Ben-Shahar & Porat, 2017).

2. Tort litigation is costly and adversarial.

Legal proceedings often exceed the value of the disputed structure, creating access-to-justice barriers and

fuelling interpersonal hostility (Morgan, 2010).

3. Tort outcomes lack general applicability.

Judicial decisions resolve individual disputes but do not create general rules for neighbour relations, leaving

homeowners uncertain about their obligations (Lee, 2020).

4. The fact-specific nature of tort claims leads to inconsistent outcomes.

Variations in judicial interpretation contribute to doctrinal unpredictability.

5. Tort law operates without institutional support.

There are no administrative or tribunal mechanisms to facilitate early resolution, unlike the structured

systems found in the UK, Australia, or Singapore (Baldwin, Cave, & Lodge, 2012).

Socio-Legal Implications

Socio-legal scholars note that reliance on tort law for boundary disputes places an unrealistic burden on private

individuals to resolve interpersonal conflicts through adversarial means (Blomley, 2005). Boundary conflicts

often involve emotional, relational, and symbolic dimensions, which litigation tends to exacerbate (Low, 2003).

In Malaysia’s increasingly dense and diverse neighbourhoods, this reliance on tort law without preventive

regulatory mechanisms contributes to social friction and undermines neighbourhood cohesion.

CONCLUSION

Tort law provides essential but limited remedies for boundary fence disputes. While it protects proprietary rights

and offers recourse for harm, it does not constitute a comprehensive governance system. Its reactive, adversarial,

and costly nature underscores the necessity of a dedicated statutory and administrative framework that

incorporates preventive duties, cooperative procedures, and accessible dispute-resolution mechanisms.

(d) Judicial Approaches in Case Law

Judicial decisions in Malaysia demonstrate that courts frequently become the default forum for resolving

disputes involving boundary fences, largely because no statutory or administrative mechanism exists to handle

such matters at an earlier stage. An examination of case law reveals several recurring themes: strict enforcement

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of cadastral boundaries, dependence on common law tort doctrines, limited judicial willingness to articulate

broader neighbour-law principles, and recognition of the limitations inherent in the current legal framework.

(i) Strict Enforcement of Boundary Lines

Malaysian courts take a strict approach toward encroachment: any unauthorised physical intrusion beyond the

legal boundary—even inadvertent or minor—constitutes actionable trespass. This reflects the Torrens principles

embedded in the National Land Code, which emphasise boundary certainty and indefeasibility of title.

In Sidek bin Haji Muhamad & Ors v Government of the State of Perak [1982] 1 MLJ 313, the Federal Court

affirmed the sanctity of boundary lines by recognising that any occupation beyond a registered boundary

undermines the integrity of the land registration system. Although the case concerned governmental occupation,

its reasoning has frequently informed private boundary disputes.

Malaysian courts have consistently ordered the removal of structures that intrude even marginally into

neighbouring land, underscoring their commitment to certainty in boundary determination (Teo & Khaw, 2012).

This strict approach reinforces proprietary rights but also highlights the lack of procedural mechanisms that

might prevent encroachment disputes before they arise.

(ii) Reliance on Nuisance and Trespass for Fence-Related Disputes

Judicial decisions involving boundary fences often engage private nuisance when a boundary structure causes

damage, blocks light or airflow, creates safety risks, or constitutes an unreasonable interference with

neighbouring enjoyment of land. In Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006]

2 MLJ 389, although not a fence case per se, the Federal Court’s reasoning on nuisance and structural instability

illustrates how courts conceptualise landowner liability for structures affecting neighbouring properties.

When fences cause drainage diversion, soil erosion, or structural degradation, courts assess the reasonableness

of the defendant’s conduct using common law nuisance principles (Morgan, 2010). However, nuisance claims

require detailed evidence and can be unpredictable, reflecting the doctrine’s case-specific nature.

Trespass, on the other hand, is invoked where fences are erected over the boundary line. Courts have repeatedly

affirmed trespass liability even for minimal encroachments, issuing mandatory injunctions requiring removal

(Teo & Khaw, 2012). While this protects titleholders, it is a reactive mechanism that requires litigation—often

disproportionate to the scale of the dispute.

(iii) Equitable Remedies and Judicial Discretion

In some disputes, courts apply principles of equity—such as injunctive relief, mandatory orders, or damages

in lieu of injunctions—depending on proportionality and hardship. The courts’ discretion under equitable

principles allows them to tailor remedies to the circumstances, such as granting time extensions for removal or

awarding compensation instead of demolition.

However, equitable interventions remain individualised and do not establish general neighbour-law principles.

Their discretionary nature, while flexible, creates unpredictability for homeowners seeking clarity on their rights

and obligations (Lee, 2020).

(iv) Recognition of Legal and Institutional Gaps

A number of judgments explicitly acknowledge that the absence of a statutory framework complicates boundary-

fence disputes. Courts have noted that the National Land Code regulates cadastral boundaries but offers no

guidance on physical structures, forcing judges to rely on case-by-case common law reasoning (Sihombing,

2005; Teo & Khaw, 2012).

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Judges frequently emphasise that local authorities do not have jurisdiction over the relational aspects of fence

construction, reinforcing the notion that litigation is often the only available pathway for homeowners. This

judicial acknowledgement of regulatory gaps strengthens the argument for statutory reform.

(v) Lack of Preventive or Procedural Standards

Case law analysis consistently shows that courts address disputes after they have escalated. There is no statutory

duty requiring:

●

prior notice to neighbours before constructing or altering a boundary fence,

consent procedures,

shared-cost rules,

maintenance responsibilities, or

administrative dispute resolution.

Courts have no authority to impose such procedural obligations themselves. As scholars have argued, this reflects

the limitations of judge-made law in addressing systemic neighbour-relation issues (Ellickson, 1991; Ben-Shahar

& Porat, 2017).

CONCLUSION

Overall, Malaysian judicial decisions on boundary fences reflect a legal system that relies heavily on case-by-

case adjudication rather than systematic regulation. Courts enforce proprietary rights rigorously, but they cannot

fill the structural and relational gaps left by statutory and administrative frameworks. The jurisprudence therefore

underscores the need for legislative intervention to provide clearer rules, preventive obligations, and accessible

dispute-resolution mechanisms that would reduce reliance on costly litigation.

Synthesis of Doctrinal Findings

The doctrinal analysis of Malaysia’s legal framework reveals a systemic and multi-layered gap in the regulation

of boundary fences. Although the National Land Code 1965 (NLC) provides a sophisticated system for cadastral

boundary determination, it offers no substantive or procedural rules on the construction, placement, maintenance,

or legal implications of physical boundary structures. This statutory silence has significant consequences. It

renders the physical boundary—represented by fences and walls—functionally detached from the legal

boundary, leaving adjoining landowners without statutory duties of notice, consultation, or cooperation. As

Malaysian land law scholars note, this disconnect reflects the NLC’s historical orientation toward title

registration rather than neighbour-relations management (Teo & Khaw, 2012; Sihombing, 2005).

Local authority by-laws, enacted under the Local Government Act 1976 and Street, Drainage and Building Act

1974, partially fill this gap by regulating the technical specifications of fences—height, opacity, materials, and

structural safety. However, these by-laws do not regulate interpersonal obligations or prescribe procedures for

shared boundary governance. As planning scholars emphasise, these instruments are administrative and

structural, not relational (Abdul Aziz, 2014; Ainul Jaria Maidin, 2012). The absence of harmonised national

standards and the varying levels of municipal enforcement further contribute to inconsistency across

jurisdictions.

In the absence of statutory and administrative regulation, tort law becomes the default governance mechanism.

Trespass, nuisance, and negligence provide remedies when fences encroach, interfere with enjoyment, or cause

physical damage. Yet these doctrines are inherently reactive and highly individualised, offering post-dispute

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remedies rather than guiding neighbour conduct ex ante (Morgan, 2010; Lee, 2020). Litigation, often costly and

adversarial, becomes the primary mode of resolution, even for minor disputes. Socio-legal research suggests that

adversarial processes intensify neighbour conflict, particularly where emotional and symbolic dimensions are

involved (Blomley, 2005; Low, 2003).

Judicial decisions further confirm the doctrinal inadequacy of the current framework. Courts consistently enforce

boundaries strictly and apply common law tort doctrines but repeatedly acknowledge they lack statutory

guidance to address the relational complexities of shared boundary spaces (Teo & Khaw, 2012). Case law thus

resolves disputes on a piecemeal basis without creating generalisable principles. The judiciary is structurally ill-

positioned to develop a coherent neighbour-law regime because these issues require legislative and

administrative design, not case-by-case adjudication.

Taken together, the doctrinal findings reveal three interlocking deficiencies:

1. Substantive gaps

– No legal rights or duties governing fence construction, consultation, cost-sharing, or maintenance.

– No statutory recognition of boundary fences as shared structures.

2. Procedural gaps

–No notice or consent requirements.

– No administrative pathways for early dispute resolution.

Institutional gaps

–No lead agency responsible for boundary fence governance.

– Fragmented mandates between land offices, local councils, and the courts.

The result is a fragmented, reactive, and homeowner-driven governance system that depends excessively on

private negotiation and litigation. This doctrinal vacuum stands in stark contrast to the comprehensive and

preventive frameworks found in other common law jurisdictions, where neighbour-law statutes impose clear

duties, procedures, and dispute-resolution mechanisms (Baldwin, Cave, & Lodge, 2012; Ellickson, 1991).

This synthesis underscores the need for a more coherent and integrated regulatory framework in Malaysia that

bridges the gap between cadastral boundaries and their physical manifestations and provides homeowners with

clear, fair, and predictable mechanisms for managing shared boundary spaces.

Governance Analysis: Fragmentation and Institutional Failure

Fragmentation of Institutional Mandates

The governance of boundary fences in Malaysia is characterised by fragmented institutional mandates, where

responsibilities are dispersed across multiple agencies—none of which possesses comprehensive authority over

boundary fence regulation. This fragmentation is a structural consequence of Malaysia’s land administration

system, in which cadastral boundaries, physical structures, planning controls, and neighbour disputes fall within

the jurisdiction of different bodies operating under different statutes. Governance scholars observe that when

regulatory functions are distributed without clear coordination, systems tend to experience gaps, overlaps, and

inefficiencies (Baldwin, Cave, & Lodge, 2012; Lodge & Wegrich, 2014).

(a) Land Offices and JUPEM: Authority Over Legal Boundaries, Not Physical Structures

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The Land Administrator and Department of Survey and Mapping Malaysia (JUPEM) are responsible for land

registration, cadastral surveys, and boundary ascertainment under the National Land Code 1965. Their mandate

extends to determining the legal boundary line and addressing disputes regarding boundary accuracy through

statutory boundary inquiries. However, their authority does not extend to regulating the construction, placement,

or maintenance of physical boundary structures such as fences and walls (Teo & Khaw, 2012; Sihombing, 2005).

Consequently, when physical fences become sources of dispute—even when placed inaccurately—land offices

routinely direct complainants to pursue private remedies or seek judicial intervention.

This institutional limitation creates a disconnect between cadastral certainty and physical occupation. Although

JUPEM can confirm whether a fence is off-boundary, it has no power to order its removal, repair, or relocation.

This undermines the practical utility of cadastral precision and leaves enforcement entirely to private parties—

a pattern noted by property governance scholars as indicative of ineffective institutional design (Ostrom, 1990;

Baldwin et al., 2012).

(b) Local Authorities: Control Over Building Standards, Not Neighbour Relations

Local councils exercise authority over building control and planning regulation under the Local Government

Act 1976 and Street, Drainage and Building Act 1974, often through subsidiary legislation such as the Uniform

Building By-Laws 1984 and municipal guidelines. Their responsibilities include approving plans, regulating

heights and materials of boundary structures, and ensuring compliance with safety and aesthetic standards

(Abdul Aziz, 2014). However, local authorities do not govern relational duties between neighbours. They have

no statutory power to require owner-to-owner consultation, adjudicate disputes, or determine shared

maintenance obligations.

This omission is significant. Despite regulating the physical specifications of fences, local authorities disavow

involvement in disputes between private landowners, frequently advising them to seek civil remedies. The result

is a regulatory system that controls the form of boundary fences but not the relationships or conflicts that arise

around them—a pattern consistent with what administrative law scholars describe as “function-specific

governance gaps” (Lodge & Wegrich, 2014).

(c) The Courts: Dispute Resolution Without Preventive Mechanisms

The courts function as the final arbiter of boundary fence disputes, primarily through tort-based actions in

trespass, nuisance, and negligence. Judicial reasoning has recognised that the absence of statutory guidance

places courts in the position of resolving interpersonal conflicts through reactive litigation rather than preventive

governance (Lee, 2020). Although courts can order removal of encroachments or award damages, they do not

have jurisdiction to prescribe procedural obligations such as notice, joint decision-making, or cost-sharing—

mechanisms that are essential features of boundary fence legislation in other common law jurisdictions

(Ellickson, 1991; Ben-Shahar & Porat, 2017).

This reliance on judicial intervention as the sole dispute-resolution pathway reinforces the adversarial nature of

neighbour relations and places significant pressure on the judiciary to resolve matters that would be better

addressed administratively.

(d) Absence of a Lead Agency

Crucially, Malaysia lacks a lead agency responsible for boundary fence governance. Land offices govern

cadastral boundaries; local councils regulate technical aspects of fences; survey departments certify boundary

lines; and courts resolve disputes. No institution coordinates these functions. Governance literature identifies

such situations—where multiple bodies possess fragmented authority but no body possesses full authority—as

classic cases of “institutional voids” (Hajer, 2003; Baldwin et al., 2012). These voids result in regulatory grey

zones where no entity feels responsible for addressing emerging problems.

(e) Consequences of Fragmentation

This institutional fragmentation produces several practical consequences:

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●

Homeowners lack clear guidance on rights and obligations.

Administrative responses are inconsistent, depending on jurisdiction.

Enforcement is weak because no agency views boundary fences as within its mandate.

Disputes escalate unnecessarily, often culminating in costly litigation.

Preventive governance mechanisms are absent, allowing small issues to become major conflicts.

These consequences reflect the broader principle that effective property governance requires institutional clarity

and coordination, particularly where boundaries affect both proprietary and relational interests (Ostrom, 1990;

Baldwin et al., 2012).

Coordination Challenges Between Institutions

The fragmentation of institutional mandates in Malaysia’s boundary fence governance is compounded by

persistent coordination challenges between the key agencies responsible for land, building, and dispute

management. Coordination failures arise both horizontally (between agencies at the same level of government)

and vertically (between federal, state, and local authorities). Governance scholarship emphasises that when

regulatory responsibilities require inter-agency cooperation, the absence of shared standards, clear procedural

interfaces, or coordinated enforcement strategies often results in regulatory incoherence and institutional inertia

(Baldwin, Cave, & Lodge, 2012; Lodge & Wegrich, 2014).

(a) Horizontal Coordination Failures

Horizontally, land offices, survey authorities, and local councils operate within parallel but isolated regulatory

domains, with minimal mechanisms for collaboration. Each agency performs a component of boundary

governance but lacks the institutional mandate or procedural protocols to work together.

For example:

●

Land offices and JUPEM determine cadastral boundaries but do not communicate systematically with local

councils about off-boundary or improperly placed fences.

Local councils enforce building by-laws but do not require cadastral verification before approving fence

construction or rebuilding.

Courts decide disputes without receiving administrative input from local authorities or land offices regarding

technical aspects of the boundary or physical fence compliance.

These siloed operating patterns reflect what governance scholars describe as “compartmentalisation,” which

occurs when agencies adhere to narrow statutory mandates and lack incentives to engage in cross-sector

coordination (Lodge & Wegrich, 2014). As a result, no single institution possesses a complete picture of

boundary fence issues, and each agency acts only within its limited field of vision.

(b) Vertical Coordination Failures

Vertically, coordination challenges emerge because Malaysia’s land system is governed at both state (land

administration) and local (building regulation) levels, while federal planning laws frame certain baseline

requirements. This multi-layered structure creates regulatory interfaces that are poorly integrated.

Examples include:

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●

State land authorities determine boundary lines, but local councils set rules for fence construction—yet the

two systems do not interact.

Federal-level by-laws (UBBL 1984) are adopted inconsistently by local councils, leading to variations in

implementation and enforcement quality.

Judicial decisions often require administrative actions (e.g., clarifying boundary lines), but courts have no

mechanism to compel inter-agency coordination or information sharing.

Scholars of multi-level governance note that such vertical misalignments are common in systems where state

and local authorities share overlapping but disconnected regulatory responsibilities (Hajer, 2003; Peters & Pierre,

2004). Without a coordinating body or shared operational framework, vertical gaps persist, producing

uncertainty and inconsistent homeowner experiences across jurisdictions.

(c) Absence of Shared Procedures and Inter-Agency Protocols

Malaysia lacks formal procedures that define how agencies should respond collectively to boundary fence issues.

There are no protocols for:

●

inter-agency notification when a boundary inspection reveals fence-related disputes;

joint investigations between land offices and local councils;

coordination between building inspectors and cadastral surveyors;

administrative referral pathways before disputes escalate to court;

integrated databases linking cadastral information with building regulation enforcement.

The absence of such coordination tools is a hallmark of what institutional theorists describe as “governance

without integration,” where agencies operate with procedural autonomy but collectively fail to produce coherent

outcomes (Baldwin et al., 2012).

(d) Consequences of Coordination Failures

The practical implications for homeowners include:

●

Conflicting advice from different agencies (e.g., land offices directing parties to local councils, and local

councils directing parties back to civil litigation).

●

Inefficient dispute handling, with no pre-litigation administrative pathway.

Inconsistent enforcement, with some councils enforcing fence guidelines strictly while others treat them as

advisory.

●

Delays in resolution, as disputes move slowly between agencies before eventually reaching the courts.

Lack of preventive oversight, since no agency feels responsible for early detection or intervention.

These challenges reflect the broader governance principle that fragmentation without coordination produces

regulatory gaps and weakens institutional capacity (Lodge & Wegrich, 2014).

(e) Comparative Insight: Foreign Jurisdictions Overcome These Challenges

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Comparative research demonstrates that jurisdictions such as the United Kingdom, Australia, and Hong Kong

avoid similar coordination failures by establishing:

●

clear statutory duties requiring inter-agency referrals;

administrative tribunals with jurisdiction over neighbour disputes;

surveyor-based systems (e.g., UK’s Party Wall surveyors) that bridge technical and relational aspects;

uniform legislation adopted consistently across local authorities.

Their experience suggests that effective boundary governance requires procedural integration, institutional

coordination, and centralised rule-making—all of which are currently absent in Malaysia.

Coordination challenges between Malaysian institutions significantly undermine the ability of the existing legal

framework to manage boundary fences effectively. Fragmentation, siloed mandates, and the absence of inter-

agency communication channels leave homeowners without coherent support, promote reliance on litigation,

and contribute to inconsistent governance outcomes. These findings underscore the necessity of developing a

more integrated, collaborative regulatory system supported by clear statutory standards and unified institutional

responsibilities.

Consequences of Governance Failures

The fragmentation of institutional mandates and the chronic lack of coordination among Malaysian authorities

produce significant and wide-ranging consequences for homeowners, neighbourhoods, and the broader land

governance system. These consequences manifest legally, administratively, socially, and economically.

Governance scholars emphasise that when regulatory systems are structurally under-designed or poorly

integrated, the resulting governance failures create uncertainty, increase compliance costs, and undermine public

trust (Baldwin, Cave, & Lodge, 2012; Lodge & Wegrich, 2014). Malaysia’s boundary fence governance exhibits

all of these symptoms.

(a) Regulatory Uncertainty and Inconsistent Enforcement

Because no single agency has comprehensive authority over boundary fences, homeowners receive conflicting

advice from different institutions. Land offices commonly disclaim jurisdiction and direct complainants to local

councils; local councils, in turn, assert that fence disputes are private matters governed by civil law; while the

police routinely classify such disputes as non-criminal and outside their jurisdiction.

This institutional ambiguity leaves homeowners unclear about:

●

what types of fences are legally permissible,

whether neighbour consent is required,

who bears responsibility for maintenance or repair,

which authority can intervene in disputes, and

when court action is necessary.

The lack of uniformity also means that enforcement varies significantly between local authorities, with some

municipalities actively enforcing fence-height limits while others treat guidelines as advisory. Such

inconsistency is a hallmark of regulatory incoherence, a well-documented outcome of fragmented governance

systems (Lodge & Wegrich, 2014).

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(b) Escalation of Minor Disputes Into Litigation

Without preventive mechanisms—such as notice requirements, administrative mediation, or statutory cost-

sharing rules—boundary fence disagreements frequently escalate into costly litigation. Tort-based claims in

trespass or nuisance are often disproportionate to the economic value of the disputed fence, yet they remain the

only legal avenue available to homeowners seeking authoritative resolution.

Litigation imposes:

●

significant financial costs,

delays due to court backlogs,

emotional strain, and

long-term deterioration of neighbour relationships.

Socio-legal research consistently shows that adversarial court processes exacerbate interpersonal conflicts,

especially within residential settings (Blomley, 2005; Low, 2003). The absence of accessible, low-cost, early-

stage dispute-resolution mechanisms therefore contributes directly to unnecessary escalation.

(c) Reinforcement of Inequalities and Power Imbalances

In governance gaps, disputes are often resolved through private bargaining, but private ordering is not equally

accessible to all parties. Wealthier or more assertive homeowners may exert disproportionate influence over

fence decisions, while more vulnerable individuals—such as tenants, elderly residents, single parents, or low-

income households—may lack bargaining power.

Ellickson’s theory of social ordering demonstrates that informal norms work efficiently only in socially cohesive,

homogeneous communities; they fail in diverse or high-density neighbourhoods where relationships among

neighbours are weak (Ellickson, 1991). Malaysia’s urban settings—particularly condominiums, terrace housing,

and mixed ethnic neighbourhoods—fit the latter profile. Hence, reliance on private ordering amplifies existing

social hierarchies rather than producing equitable outcomes.

(d) Inefficient Use of Public Resources

Fragmentation forces multiple agencies to handle isolated components of the same dispute. For example:

●

JUPEM may be asked to verify a boundary line.

The land office may review title documents.

Local councils may inspect the fence for structural compliance.

Courts may adjudicate disputes.

This duplication of functions increases administrative workload without producing coherent or efficient

governance outcomes. Governance literature describes this as institutional redundancy without integration,

where agencies expend resources independently instead of collaboratively (Baldwin et al., 2012).

(e) Weak Compliance and Low Deterrence

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Because enforcement of fence regulations is inconsistent, many homeowners do not comply with height limits

or planning guidelines. The absence of coordinated enforcement or meaningful penalties creates low deterrence,

encouraging:

●

over-height fences,

fully opaque walls in violation of ventilation requirements,

fences built directly on neighbours’ land,

ad hoc modifications without approval.

Weak enforcement signals that regulations lack legitimacy—a phenomenon widely documented in regulatory

theory (Tyler, 2006). Over time, this erodes respect for planning rules more broadly.

(f) Deterioration of Neighbourhood Cohesion and Social Trust

Boundary fences carry significant symbolic and social meanings. They mark privacy, security, autonomy, and

interpersonal boundaries. When disputes arise over fences—often emotionally charged matters—the absence of

cooperative or mediated resolution mechanisms fosters resentment, entrenched hostility, and long-term

neighbour alienation.

Studies on urban social fragmentation show that persistent, unresolved micro-disputes weaken trust, reduce

willingness to cooperate, and diminish the quality of residential life (Low, 2003; Blomley, 2005). In Malaysian

neighbourhoods, where population density is increasing and inter-ethnic interactions are sensitive, such conflicts

may exacerbate social fissures.

(g) Cumulative System-Level Effects

Taken together, these consequences result in:

●

a reactive governance system, driven by litigation;

high transaction costs for homeowners;

administrative inefficiencies for government agencies;

lack of predictable outcomes; and

persistent social tension in residential areas.

These cumulative effects illustrate the system-wide impact of Malaysia’s governance failure—a regulatory void

that neither protects property rights effectively nor promotes cooperative neighbour relations.

Comparative Insights from Foreign Jurisdictions

United Kingdom: The Party Wall etc. Act 1996

The United Kingdom’s Party Wall etc. Act 1996 offers a highly structured statutory regime for regulating works

to shared and boundary structures, and provides a useful comparative model for thinking about boundary fence

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governance in Malaysia. Although the Act is not a “fence code” in the strict sense, it regulates party structures

on or near the line of junction between properties, including certain garden walls, and thus directly addresses

many of the relational and procedural issues that arise between adjoining owners (Party Wall etc. Act 1996, UK).

(a) Scope and Regulatory Philosophy

The Act applies to three broad categories of work:

1. Works to party walls and party structures shared between properties.

2. Construction of new walls on the line of junction between two pieces of land.

3. Excavation and construction works near adjoining structures within specified distances and depths.

Its underlying philosophy is preventive and procedural: rather than relying on tort or post-hoc litigation, it seeks

to avert disputes by requiring formal notice, consultation, and expert determination (Hollington, 2017). This

contrasts sharply with Malaysia’s reactive, tort-dominated approach.

(b) Statutory Notice and Consent Mechanism

A core feature of the Act is its mandatory notice regime. A “building owner” wishing to undertake works

covered by the Act must serve a written notice on the “adjoining owner” within specified timeframes—typically

one or two months before the proposed works. The notice must include sufficient detail of the works, including

plans and timing, to allow the adjoining owner to assess potential impact (Party Wall etc. Act 1996, s. 3–6).

The adjoining owner may:

●

consent in writing;

dissent and require the appointment of surveyors; or

fail to reply, in which case a deemed dispute arises.

This mechanism embeds into law what is completely missing in Malaysia: a clear, mandatory procedure of

communication and acknowledgment between neighbours before construction takes place.

(c) Role of Party Wall Surveyors

When a dispute arises (either expressly or by silence), the Act requires the appointment of party wall surveyors.

Either:

●

both parties agree on a single surveyor; or

each party appoints their own, and the two appoint a third surveyor as a “backup” decision-maker.

These surveyors act not as advocates for the appointing party, but as statutory, quasi-judicial decision-makers,

owing a duty to the Act rather than to either neighbour (Hollington, 2017). They:

●

inspect the properties;

consider the technical implications of the proposed works;

determine the manner and timing of execution;

allocate costs;

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●

provide for access and protections; and

resolve any associated disputes.

This expert-based system bridges technical, legal, and relational dimensions of boundary works—something

entirely absent in the Malaysian framework, where technical experts (surveyors, engineers) are not embedded in

a statutory neighbour-dispute process.

(d) The Party Wall Award

The surveyors issue a party wall award, which is legally binding unless appealed to the county court within a

short time. The award typically specifies:

●

the works permitted;

methods and safeguards;

rights of access;

requirements for making good any damage;

allocation of costs and fees.

This award functions as an administrative, expert determination, giving clarity to both parties and reducing

reliance on conventional litigation (Glover, 2011). It is a concrete example of preventive, structured governance

rather than ad hoc dispute resolution.

(e) Rights of Access and Protection of Adjoining Property

The Act grants the building owner statutory rights of access to the adjoining owner’s land where reasonably

necessary to carry out the works, subject to notice and reasonable conditions (Party Wall etc. Act 1996, s. 8).

The surveyor(s) can regulate how access is exercised and ensure that appropriate protections and reinstatement

obligations are imposed. This legal structure recognises that boundary-related works often require temporary

intrusion into a neighbour’s airspace or land, and manages it in a controlled, rights-and-duties framework.

In Malaysia, by contrast, any entry onto neighbouring land for fence construction risks being characterised as

trespass, absent clear agreement. The UK model shows how a statute can legitimise and discipline necessary

intrusions through explicit, balanced rules.

(f) Dispute Resolution and Limited Court Role

The Act provides a self-contained dispute resolution process:

1. Notice and opportunity for consent.

2. Expert determination by surveyors.

3. Binding award.

4. Limited right of appeal on points of law.

This drastically reduces the need for full court trials, lowers costs, and shortens timelines. Courts retain a

supervisory, not primary, role. Comparative scholars highlight this as a classic example of “responsive

regulation” where expert bodies and statutory processes manage day-to-day conflicts, leaving courts as

backstops (Baldwin, Cave, & Lodge, 2012).

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(g) Strengths and Limitations

Key strengths of the UK model include:

●

Clear statutory duties (notice, consent, dispute procedures).

Neutral expertise through surveyors.

Accessibility and relative speed compared to litigation.

Balanced protection of both building and adjoining owners.

Nationwide uniformity in England and Wales.

However, limitations also exist:

●

The scheme can be technically complex for laypersons.

Surveyor fees may be significant in contentious or complex works.

The Act’s focus is on walls and structural works, not on all forms of fencing.

Even so, as a model of neighbour governance, it offers a rich template.

(h) Lessons for Malaysia

Several lessons emerge for Malaysian boundary fence reform:

1. Proceduralisation of neighbour relations – The UK model shows the value of embedding mandatory notice,

consultation, and structured disagreement procedures into statute.

2. Expert-driven dispute resolution – Integrating surveyors or technical experts into the process allows disputes

to be resolved with both legal and engineering competence.

3. Administrative awards over full litigation – A binding “award” mechanism could relieve Malaysian courts

and reduce the cost and hostility of neighbour disputes.

4. Recognising shared boundary structures as a special category – The Act treats party structures as a distinct

regulatory object requiring special rules; a Malaysian Boundary Fences or Neighbour Boundaries Act could

do the same.

5. Nationwide coherence with local implementation – A federal statute, applied consistently but administered

locally, could overcome the current patchwork of by-laws and practices.

In sum, the Party Wall etc. Act 1996 illustrates that neighbour relations around boundaries can be governed

proactively and cooperatively, rather than left to private bargaining and tort litigation. While the Act cannot be

transplanted wholesale, its procedural logic and institutional design provide compelling guidance for Malaysian

reform.

The United Kingdom’s Party Wall etc. Act 1996 demonstrates how a clear statutory framework can transform

neighbour relations by shifting governance from a reactive, litigation-driven model to a proactive, procedure-

driven one. Yet, the UK regime focuses primarily on party walls and structural works rather than everyday

boundary fences. To appreciate how jurisdictions regulate fences specifically, a broader comparative perspective

is needed. Australia offers one of the most comprehensive and longstanding models of boundary fence regulation

across multiple states and territories. Unlike the UK’s surveyor-led process, Australian Dividing Fences Acts

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emphasise cost-sharing, notice requirements, maintenance obligations, and low-cost dispute resolution,

providing an alternative paradigm for managing neighbour interactions. Together, these jurisdictions illustrate

different regulatory philosophies—expert-driven (UK) versus community-based and administratively facilitated

(Australia)—both of which highlight the deficiencies of Malaysia’s current fragmented framework and offer

concrete directions for reform.

Australia: Dividing Fences Acts

Australia provides one of the clearest and most developed statutory models for the regulation of boundary fences

through a series of Dividing Fences Acts enacted in various states and territories (e.g., Dividing Fences Act 1991

(NSW), Fences Act 1968 (Vic), Dividing Fences Act 1961 (WA)). Although the details vary, these statutes share

a common regulatory philosophy: they treat boundary fences as shared structures and expressly regulate the

rights, duties, and dispute-resolution mechanisms between adjoining landowners. This offers a sharp contrast to

Malaysia’s reliance on private ordering and tort law, and provides valuable comparative insights.

(a) Shared Responsibility and the Concept of “Sufficient Fence”

At the heart of Australian dividing-fence legislation is the notion that a boundary fence is ordinarily a joint

responsibility of the adjoining owners. Each statute defines or permits the determination of a “sufficient fence”

– a fence considered adequate for the locality, the nature of the land, and the purpose of the properties

(Edgeworth, Rossiter, & O’Connor, 2019). Where no particular fence is prescribed, sufficiency is often

determined by local standards or by agreement between neighbours.

The statutes generally provide that:

●

adjoining owners are liable in equal shares for the cost of constructing a sufficient dividing fence (unless

circumstances justify a different apportionment);

where one owner wants a fence of a higher standard than is considered “sufficient”, they must bear the

additional cost;

obligations extend to repair and replacement, not only initial construction.

This approach explicitly recognises the relational nature of boundary fences and allocates financial responsibility

through clear statutory presumptions, a feature entirely absent in the Malaysian framework.

(b) Notice and Consultation Requirements

Australian Acts embed procedural obligations that structure neighbour interactions. Typically, an owner

proposing to construct or repair a dividing fence must serve a “fencing notice” on the adjoining owner,

specifying:

●

the type and standard of fence proposed;

estimated costs and the apportionment of those costs;

proposed timing for the works.

The adjoining owner may agree, negotiate, or object. If no agreement is reached, the matter can be referred to a

local court or tribunal for determination (Edgeworth et al., 2019; Bradbrook, MacCallum, & Moore, 2011).

These notice and consultation requirements ensure that decisions about boundary fences occur within a

structured legal framework, rather than being left to informal and potentially conflictual negotiation.

(c) Maintenance and Repair Duties

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Dividing Fences Acts also codify ongoing maintenance obligations. Neighbours must share the reasonable cost

of maintaining a sufficient fence in good repair. If one owner neglects their responsibilities, the other may carry

out the necessary works after proper notice and recover a proportion of the costs through statutory procedures.

This is particularly important because many disputes arise not from initial construction, but from deteriorating

fences, unilateral repairs, or replacement without consultation. By regulating maintenance explicitly, Australian

statutes acknowledge the long-term lifecycle of boundary fences.

(d) Accessible Dispute Resolution Mechanisms

A key strength of the Australian model is its provision for accessible, low-cost dispute resolution. Disagreements

about:

●

whether a fence is “sufficient”,

the type of fence required,

cost-sharing proportions, or

responsibility for damage

may be referred to local magistrates’ courts, civil and administrative tribunals (such as the NSW Civil and

Administrative Tribunal), or equivalent bodies, depending on the state. These bodies offer simplified procedures,

lower costs, and faster resolution than full civil litigation (Bradbrook et al., 2011).

This tribunal-based model illustrates that boundary disputes need not be resolved exclusively through high-cost,

adversarial litigation, but can instead be managed by specialised or lower-tier institutions.

(e) Integration with Planning and Local Conditions

Although Dividing Fences Acts operate at the state level, they often allow or require reference to local planning

instruments or local council guidelines when determining what constitutes a sufficient fence. In this way, the

statutory regime balances state-wide legal clarity with local adaptability, ensuring that standards reflect

neighbourhood character, zoning, or environmental conditions (Edgeworth et al., 2019).

This integrated approach is instructive for Malaysia, where local by-laws currently regulate fence form but not

neighbour relations. An Australian-style model would allow Malaysia to combine national-level principles with

localised technical standards, administered in a coherent fashion.

(f) Strengths and Weaknesses of the Australian Model

Key strengths include:

●

Clear articulation of shared financial responsibility (presumptive equal cost-sharing).

Embedded notice and consultation procedures, which reduce surprise and promote dialogue.

Codified maintenance obligations, addressing the full lifecycle of fences.

Accessible, low-cost dispute resolution forums.

Flexibility to adapt standards to local conditions.

However, commentators also note challenges:

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●

Fencing disputes still arise where parties are uncooperative or misunderstand their rights (Edgeworth et al.,

2019).

●

Legal complexity can exist in special contexts (e.g., rural land, different utility of fencing).

Some owners may remain unaware of their statutory rights or obligations.

Nonetheless, as a regulatory template, the Dividing Fences Acts represent one of the most coherent approaches

to neighbour fence governance in the common law world.

(g) Lessons for Malaysia

From the Australian experience, several lessons emerge for Malaysian reform:

1. Statutory recognition of boundary fences as shared structures – Boundary fences should be treated as a joint

responsibility of adjoining owners, subject to statutory presumptions and exceptions.

2. Clear cost-sharing and maintenance rules – Default rules on construction and repair costs would greatly

reduce uncertainty and conflict.

3. Mandatory notice and consultation procedures – A statutory “fencing notice” system could ensure that

neighbours are informed and can negotiate before works begin.

4. Tribunal or local court jurisdiction for boundary fence disputes – Designated, low-cost forums could handle

boundary issues more efficiently than full civil litigation.

5. Integration with local technical regulation – National-level principles can coexist with local authority by-

laws on height, materials, and aesthetics, provided roles are clearly delineated.

In sum, the Australian Dividing Fences Acts demonstrate that boundary fence governance can be structured

around shared responsibilities, procedural clarity, and accessible dispute resolution, offering a strong

comparative model for Malaysia’s prospective reforms.

While Australia’s Dividing Fences Acts illustrate how legislatures can structure neighbour relations through

shared responsibilities, notice procedures, and accessible dispute-resolution mechanisms, they operate within a

context of predominantly low- to medium-density suburban housing. By contrast, Singapore presents a different

regulatory paradigm, one shaped by high-density urban living, a strong central planning authority, and

comprehensive building control systems. Singapore does not adopt a dedicated “dividing fences” statute; instead,

boundary management is embedded within broader planning, building, and strata governance frameworks,

administered by highly coordinated agencies such as the Building and Construction Authority (BCA), Urban

Redevelopment Authority (URA), and municipal councils. This integrated regulatory environment offers a

model of centralised, preventive planning control—distinct from both the expert-driven UK regime and the

procedurally structured Australian model. Together, these jurisdictions showcase three different governance

philosophies, each illuminating the deficiencies and reform possibilities for Malaysia’s fragmented boundary

fence framework.

New Zealand: The Fencing Act 1978

New Zealand’s Fencing Act 1978 provides a clear and structured statutory regime governing boundary fences,

building upon principles similar to Australia’s Dividing Fences Acts while introducing additional procedural

and relational mechanisms. The Act expressly recognises boundary fences as shared structures, and codifies the

rights and duties of adjoining owners in relation to construction, repair, replacement, cost-sharing, and dispute

resolution. Its straightforward, accessible, and homeowner-oriented framework offers another instructive model

for potential Malaysian reform.

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(a) Statutory Recognition of Shared Responsibility

The Fencing Act 1978 begins from a foundational premise: adjoining occupiers share equal responsibility for an

adequate boundary fence, unless circumstances justify a different allocation. Section 9 establishes a presumption

of equal sharing of costs, which can be adjusted based on:

●

differing uses of the properties,

differing needs (e.g., security, containment of animals),

whether one party benefits substantially more from the fence.

This flexible cost-sharing mechanism recognises that equity, rather than strict equality, should guide allocation

— a principle absent in the Malaysian context, where no legal framework addresses shared responsibilities at

all.

Scholars of New Zealand property law note that the Act reflects a pragmatic, community-oriented approach to

neighbour relations (Toomey, 2017), balancing individual autonomy with reciprocal obligations.

(b) The “Fencing Notice” Procedure

Similar to Australian legislation, the Act contains a structured notice-and-response system. A party wishing to

build or repair a boundary fence must serve a fencing notice on the adjoining occupier (ss. 10–12), detailing:

●

the type of fence proposed,

construction materials,

estimated cost and apportionment,

intended timelines, and

justification for the proposal.

The adjoining owner may:

●

agree,

negotiate different terms, or

issue a cross-notice objecting to the proposal.

If no agreement is reached, the matter may proceed to the District Court, which resolves disputes through

simplified procedures tailored for neighbour matters.

This formalised process embeds communication, transparency, and accountability directly into the statutory

framework, avoiding the informal and often adversarial negotiations seen in Malaysia.

(c) Flexible Concept of “Adequate Fence”

Section 2 defines an “adequate fence” as one that is reasonably satisfactory for the purpose it serves, considering:

●

the nature of the land,

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●

the location and neighbourhood character,

local conditions, and

any relevant bylaws or regulations.

The Act thereby allows local context to inform statutory obligations, acknowledging that fencing needs differ

between:

●

suburban residential areas,

rural farms,

commercial properties, or

mixed-use areas.

This flexibility is particularly relevant to Malaysia, where urban and semi-rural environments often coexist

within the same municipalities, yet no statutory guidance differentiates fencing needs across land types.

(d) Damage, Neglect, and Liability

The Act imposes statutory duties regarding maintenance and repair. If a fence is damaged (by weather events,

neglect, or actions of one party), the responsible party may be required to bear a larger share — or all — of the

repair cost (s. 17). Scholars note that this strengthens accountability and reduces the incentive for neglect

(Toomey, 2017).

Malaysia currently lacks such rules, meaning disputes over damaged fences often escalate to tort claims in

nuisance or negligence, even when a simple statutory mechanism could have resolved the issue.

(e) Cost Recovery Without Litigation

The Fencing Act includes a practical mechanism that allows a party who unilaterally undertakes construction or

repair (after proper notice) to recover the adjoining owner’s share of costs as a debt (s. 24). This allows

homeowners to resolve matters efficiently without immediate recourse to litigation.

Where disputes do arise, the Act grants the District Court jurisdiction to determine:

●

what constitutes an adequate fence,

how costs should be apportioned,

timing and methods of construction, and

ancillary issues such as access to adjoining land.

The streamlined nature of District Court proceedings makes them faster and less adversarial compared to full

civil litigation.

(f) Strengths and Weaknesses of the New Zealand Model

Strengths:

●

Clear statutory articulation of shared responsibilities.

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●

Structured communication through fencing notices and cross-notices.

Procedural fairness built into the decision-making process.

Flexible standards adaptable to local conditions.

Low-cost dispute resolution mechanisms.

Efficient cost-recovery provisions that reduce litigation.

Weaknesses:

●

Some complexity in rural versus urban application.

Occasional disputes about what constitutes “adequate” fencing.

Some technical aspects may require professional input (surveyors, builders).

Nonetheless, the Act is internationally recognised for its clarity, accessibility, and effectiveness in reducing

neighbour conflict.

(g) Lessons for Malaysia

New Zealand’s model demonstrates several important design principles Malaysia could adopt:

1. Statutory cost-sharing as a default rule.

2. Formal notice procedures to structure neighbour communication.

3. Definition of an “adequate” boundary fence adapted to local authority guidelines.

4. Maintenance and damage duties grounded in fairness.

5. Streamlined court processes for minor fence-related disputes.

6. Legal recognition of neighbour relationships as a relevant dimension of property governance.

Taken together, these principles illustrate how a clear statutory scheme can reduce conflict, improve fairness,

and provide predictable outcomes — all of which are missing from Malaysia’s current fragmented and reactive

governance framework.

Synthesis of Comparative Lessons

The comparative analysis of the United Kingdom, Australia, and New Zealand reveals three distinct yet

complementary governance philosophies for managing boundary structures. Together, these jurisdictions

illustrate how statutory clarity, procedural safeguards, and institutional design can transform neighbour relations

from contentious private negotiation into predictable, fair, and cooperative processes. The lessons drawn from

these systems illuminate the deficiencies in Malaysia’s current framework while offering concrete principles

that can guide reform.

(a) Boundary Structures Require Dedicated Legal Attention

A common feature across all three jurisdictions is the statutory recognition of boundary structures as a unique

class of property-related objects requiring bespoke regulation. The UK regulates party walls and line-of-junction

structures; Australia and New Zealand regulate dividing fences. Each system acknowledges that boundary

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structures generate recurrent neighbour disputes that cannot be adequately managed through general tort

doctrines or general land law.

By contrast, Malaysia treats boundary fences as private matters governed by ad hoc negotiation and tort

remedies. The absence of statutory attention to fences as a specific regulatory object leaves homeowners without

clear rights and duties, leading to uncertainty, inconsistent outcomes, and conflict escalation. The comparative

lesson is clear: boundary structures must be recognised in statute as shared or relational objects with dedicated

rules and procedures.

(b) Proceduralisation Is Essential for Peaceful Neighbour Relations

All three jurisdictions embed mandatory procedural mechanisms into the law:

●

United Kingdom: statutory notices, surveyor appointments, binding awards.

Australia: fencing notices, cross-notices, statutory timelines.

New Zealand: fencing notices, objections, simplified District Court procedures.

These procedures serve several purposes:

●

Create transparency and predictability.

Ensure neighbours communicate before works begin.

Reduce opportunities for misunderstanding.

Provide structured pathways for consent and disagreement.

Prevent disputes from escalating into litigation.

Malaysia lacks any such proceduralisation. Fence construction and repair typically occur without notice, often

triggering surprise, resentment, or allegations of trespass. The lesson is that structured communication must be

legally mandated, not left to social norms or goodwill.

(c) Shared Responsibility and Clear Cost-Sharing Rules Promote Fairness

Australia and New Zealand adopt a presumptive rule of equal cost-sharing, subject to equitable adjustments.

These jurisdictions explicitly recognise that boundary fences serve both properties and therefore represent a

common benefit. These statutory presumptions:

●

reduce uncertainty about financial obligations;

eliminate bargaining power disparities;

prevent opportunistic refusal to contribute;

embed fairness into neighbour relations.

Malaysia, by contrast, provides no guidance on who should pay for construction, replacement, or repair, leaving

resourceful or assertive neighbours in stronger positions. The comparative insight is that statutory allocation of

financial responsibility is fundamental to reducing disputes.

(d) Integration of Technical Expertise in Dispute Resolution

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The UK’s surveyor-based system and Australia/New Zealand’s tribunal processes highlight the value of

technical expertise in resolving boundary matters. Professionals with surveying, construction, or engineering

competence are empowered to:

●

design safe and appropriate solutions;

allocate costs;

determine construction methods;

assess property-specific risks.

In Malaysia, courts decide disputes without systematic technical support unless parties hire their own experts.

This leads to expense, asymmetric knowledge, and inconsistent outcomes.

The lesson is that Malaysia requires an expert-informed administrative or quasi-judicial mechanism, not reliance

solely on adversarial litigation.

(e) Preventive Governance Reduces Litigation and Conflict

All comparative jurisdictions adopt a prevention-first model:

●

disputes are resolved through notice, negotiation, and administrative determination before becoming legal

cases;

●

courts act only as a final appellate forum or as one option among several;

early intervention mechanisms reduce hostility and transaction costs.

Malaysia’s absence of preventive mechanisms means disputes frequently escalate directly to court, increasing

costs, prolonging conflict, and straining neighbour relations.

Comparative evidence thus supports the conclusion that preventive governance mechanisms must be

incorporated into any Malaysian reform.

(f) Centralisation of Standards with Local Adaptation Enhances Consistency

Australia and New Zealand combine uniform statutory principles with localised technical guidelines. The UK

integrates technical execution into surveyor awards but maintains national consistency in procedures. This

blended approach ensures:

●

nationwide clarity about rights and duties;

adaptability to local conditions (urban, suburban, rural);

consistency across municipalities;

coherent enforcement practices.

In Malaysia, local councils regulate fence height and materials, but there is no national framework explaining

obligations between neighbours. The result is fragmented regulation and inconsistent experiences across states.

The lesson is that Malaysia needs national-level legal principles, supplemented by local building standards, all

integrated into one coherent system.

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(g) The Holistic Insight: Governance Must Be Both Legal and Relational

Across all jurisdictions, boundary governance is understood not simply as a matter of property law but as an area

requiring:

●

legal rules,

procedural duties,

technical standards,

relational obligations, and

administrative mechanisms.

This multidimensional approach contrasts sharply with Malaysia’s reliance on private ordering + tort law, a

combination proven ineffective in managing shared boundary spaces.

The comparative synthesis thus affirms that Malaysia must adopt an integrated governance model that is:

●

statutory,

procedural,

preventive,

equitable, and

technically informed.

Such an approach would reduce disputes, enhance neighbourhood cohesion, and align Malaysia with modern

property-governance principles in other common law jurisdictions.

Implications for Malaysian Policy and Legal Reform

The combined doctrinal and comparative analyses demonstrate that Malaysia’s current framework for boundary

fence governance is not merely incomplete—it is structurally incapable of regulating neighbour relations in a

predictable, fair, or efficient manner. The governance vacuum, reliance on tort law, and fragmentation across

institutions have systemic implications for property rights, social cohesion, and administrative efficiency.

Drawing from the legislative philosophies of the United Kingdom, Australia, and New Zealand, several key

implications emerge for Malaysian policymaking and legal reform.

(a) Recognition of Boundary Fences as a Distinct Regulatory Category

The first implication is the need for Malaysia to formally recognise boundary fences as a regulatory object

requiring dedicated legal attention. Under current Malaysian law, fences fall into a conceptual grey area: they

are neither fully governed by the National Land Code nor comprehensively addressed by local authority by-

laws. The comparative jurisdictions treat boundary structures as relational and shared, not merely private objects.

Policy implication:

A new statutory framework—such as a Boundary Fences Act or Neighbour Boundaries Act—is needed to

provide legal clarity and recognise fences as structures that inherently affect multiple properties.

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(b) Embedding Procedural Fairness Through Statutory Notice Requirements

All comparative jurisdictions demonstrate that neighbour disputes can be substantially reduced through statutory

proceduralisation, especially mandatory notice and consultation before constructing, repairing, or modifying a

boundary fence.

In Malaysia, most disputes arise because one party undertakes unilateral construction without informing the

other. Procedural obligations can pre-empt these conflicts.

Policy implication:

Introduce statutory notice requirements, specifying:

●

what information must be provided,

timelines for response,

consequences of failure to respond, and

default mechanisms when neighbours disagree.

This would shift Malaysia from a reactive to a preventive governance model.

(c) Establishing Statutory Cost-Sharing and Maintenance Rules

A major implication for reform is the adoption of clear cost-sharing principles, similar to Australia and New

Zealand. Currently, Malaysian law provides no guidance on financial responsibility for construction, repair, or

replacement. This places disproportionate burden on negotiation, often favouring stronger parties.

Policy implication:

Introduce presumptive equal cost-sharing rules, with flexibility for adjustments based on:

●

differing uses,

differing benefits,

differing needs (e.g., security), and

circumstances where one party damages the fence.

This would promote fairness and provide predictable standards for homeowners.

(d) Creating a Low-Cost, Accessible Dispute Resolution Mechanism

Malaysia’s reliance on full civil litigation to resolve minor fence disputes is inefficient and costly. Comparative

models show that tribunals or specialist processes handle these matters more effectively.

Policy implication:

Establish a Neighbour Dispute Tribunal or grant jurisdiction to existing bodies (e.g., Strata Management

Tribunal, local government tribunals) to resolve boundary fence disputes, empowered to:

●

determine adequate fence standards,

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●

allocate costs,

issue binding orders,

regulate access for construction/repair.

This could dramatically reduce court caseload and improve public access to justice.

(e) Integrating Technical Expertise Into Governance

Boundary issues often require technical assessments (e.g., surveying, engineering, construction standards). The

absence of built-in expertise contributes to inconsistent outcomes in Malaysia.

Comparative regimes institutionalise expertise through:

●

UK’s surveyor-based determinations,

Australia’s tribunal inquiries,

New Zealand’s court-supported assessments.

Policy implication:

Malaysia should integrate surveyors or building professionals into the dispute-resolution process, either as:

●

statutory decision-makers,

technical advisors to tribunals, or

authorised inspectors.

This would enhance accuracy, fairness, and legitimacy of decisions.

(f) Centralising Principles With Local Implementation

Another implication is the need for centralised statutory principles with local authority operationalisation,

mirroring Australia and New Zealand. Local councils should not be the sole regulators, but should retain

authority over technical specifications (height, materials, aesthetics).

Policy implication:

Adopt a hybrid governance model where:

●

the federal/state statute defines rights, duties, and procedures, while

local authorities retain regulatory power over design and technical standards.

This maintains consistency without disregarding local context.

(g) Reducing Litigation and Promoting Preventive Governance

The overarching implication is that Malaysia must shift from a litigation-driven to a preventive governance

model. Current tort-based pathways escalate conflict, burden courts, and damage neighbour relations.

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Policy implication:

Introduce a multi-layered structure that includes:

1. mandatory notice and consultation,

2. expert-based administrative decision-making,

3. accessible tribunals, and

4. appellate oversight by courts only as a last resort.

This ensures disputes are managed early, cheaply, and efficiently.

(h) Strengthening Neighbourhood Cohesion and Social Harmony

Finally, boundary fence reform is not merely a legal or administrative concern. Poor governance of fences can

exacerbate neighbour hostility, erode social trust, and diminish community harmony. Comparative jurisdictions

embed relational and cooperative duties into law, recognising the social dimensions of boundaries.

Policy implication:

A Malaysian reform should explicitly aim to:

●

reduce neighbour conflict,

promote communication,

enhance fairness, and

support long-term neighbourhood cohesion.

This broader social objective aligns with contemporary property-governance theory, which views neighbour

relations as integral to land-use systems.

Conclusion of Section 4.5

The implications from comparative study clearly indicate that Malaysia requires a structured, statutory,

preventive, and relational governance framework for boundary fences. Reform is both necessary and feasible,

and the experiences of the UK, Australia, and New Zealand provide robust templates for developing a coherent,

modern, and socially responsive Malaysian system.

CONCLUSION AND RECOMMENDATIONS

Conclusion and Recommendations

This study has demonstrated that the governance of boundary fences in Malaysia suffers from deep and systemic

deficiencies. The doctrinal analysis shows that the National Land Code 1965 does not regulate physical boundary

structures, local authority by-laws focus almost exclusively on technical construction parameters, and tort law

remains the primary (but limited and reactive) dispute-resolution mechanism. The governance analysis further

reveals fragmentation, lack of coordination, institutional voids, and inconsistent enforcement across agencies.

As a result, Malaysian homeowners confront uncertainty, escalating disputes, inefficient litigation pathways,

and reduced neighbourhood cohesion.

In contrast, the comparative examination of the United Kingdom, Australia, and New Zealand illustrates that

boundary governance can be structured in a manner that is predictable, preventive, relational, and institutionally

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coherent. These jurisdictions offer practical models for procedural duties, cost-sharing rules, expert-based

assessment, and low-cost dispute resolution that are better suited to managing the inherently social and shared

nature of boundary structures. The synthesis of lessons from these systems shows that effective boundary

governance requires not only legal clarity but also integrated administrative structures and fair procedures that

support neighbour cooperation.

To address these gaps and move towards a more coherent regulatory system, the following recommendations

are proposed:

Enact a Dedicated Malaysian Boundary Fences Act

Malaysia should adopt a new statute—whether titled Boundary Fences Act, Neighbour Boundaries Act, or

similar—that:

●

defines the legal status of boundary fences,

sets out rights and duties between adjoining landowners,

establishes procedural requirements (notice, consultation, timelines),

provides mechanisms for cost-sharing,

clarifies maintenance and repair responsibilities, and

integrates technical standards with local government by-laws.

This central legislative reform would provide the legal foundation currently missing in Malaysia.

Introduce Mandatory Notice and Consultation Procedures

Statutory procedures based on the UK and Australasian models should require neighbours to:

●

provide written notice before constructing, repairing, or altering boundary fences,

include specifications, cost estimates, and timelines,

allow for responses, objections, and counter-proposals.

These procedures would prevent surprises, reduce conflict escalation, and introduce fairness into neighbour

interactions.

Adopt Clear Cost-Sharing Rules with Flexibility for Equity

Malaysia should adopt a default rule of equal cost-sharing, subject to equitable variation as in Australia and New

Zealand, based on:

●

differing needs or uses,

differing benefits,

fault-based damage,

special circumstances (e.g., security, safety).

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This would resolve one of the most common sources of disputes.

Establish a Low-Cost Neighbour Dispute Tribunal

A specialised tribunal (or expanding the jurisdiction of existing bodies such as the Strata Management Tribunal

or Local Government Courts) should be empowered to:

●

hear fence-related disputes,

determine adequate fence standards,

allocate costs,

regulate access for construction,

issue binding orders enforceable like court orders.

This would dramatically reduce the burden on courts and provide homeowners with an accessible, affordable

avenue for resolution.

Integrate Technical Expertise Into the Decision-Making Process

Malaysia should incorporate surveyors, engineers, or certified building professionals into statutory procedures,

either as:

●

expert assessors,

appointed surveyors (like in the UK),

tribunal advisors,

or authorised inspectors.

This ensures decisions reflect both legal and technical competence.

Harmonise National Statutory Principles with Local Authority Guidelines

The national statute should articulate rights, duties, and processes, while delegating to local authorities the power

to regulate:

●

fence heights,

materials,

aesthetic or architectural requirements,

neighbourhood-specific standards.

This hybrid approach would provide consistency while preserving local flexibility.

5.7 Promote Preventive Governance and Neighbourhood Cohesion

Boundary fence regulation must be seen not merely as a technical matter but as a site of neighbour-relational

governance. The law should aim to:

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●

pre-empt disputes,

promote communication,

encourage cooperative behaviour,

support harmonious community living.

This aligns with modern governance principles recognising that legal frameworks must address both structural

and social dimensions of property boundaries.

Final Reflection

Malaysia now faces an important opportunity. The current framework—fragmented, reactive, and reliant on tort

law—does not meet the needs of contemporary housing, urban density, or diverse social environments. A

dedicated statutory and administrative framework would not only reduce legal disputes but also enhance fairness,

improve access to justice, and strengthen neighbourhood cohesion.

By adopting the preventive, structured, and relational approaches evident in the United Kingdom, Australia, and

New Zealand, Malaysia can modernise its boundary fence governance and align property law with the practical

realities of neighbour relations in the twenty-first century.

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