After obtaining a formal survey, many New Zealanders may be surprised to find out that the fence between their property and that of their neighbours’ is not located exactly on the legal boundary. Such information is contrary to what parties had assumed and can lead to disputes between neighbours.
The general rule under section 9 of the Fencing Act 1978 (Fencing Act) is that ‘Occupiers’ of properties adjoining the fence must share the burden of the cost of erection, relocation and/ or maintenance (to the extent that the damage is not wholly attributable to the fault of one party) of an adequate fence.
Under the Fencing Act, an ‘Occupier’ is either the owner of the adjoining land or a tenant of the adjoining land with a lease that is longer than 10 years.
If you find yourself in such circumstances, unless the works are urgent, you will have to issue a Fencing Notice to erect, relocate or complete fencing works. However, before you do so, you should consider the below.
- Ownership of the adjoining land: Check who the owner of the adjoining land is and the type of ownership they have over the land.
It is important to find out who the Occupiers are as this will determine with whom you must have discussions and on whom you must serve a Fencing Notice. The adjoining land may be part of the common area of a cross lease title, or a unit title managed by a Body Corporate. If the land is common area, a Fencing Notice must be served on all lessors under a cross lease or, in the case of a unit title, all unit owners and the Body Corporate.
Where there is a change of ownership of the adjoining land before the matter is settled, you will have to issue a fresh new Fencing Notice, as the original Fencing Notice will cease to have effect upon sale under section 15 of the Fencing Act.
- Fencing Covenants: Check whether there are any covenants registered against your title or the adjoining Occupier’s title that prohibit you from requesting a contribution to the cost of the fence.
Often, standard fencing covenants will have become redundant as they tend to only bind the original parties to the agreement, particularly where the covenant is registered as part of a backyard subdivision where the original owner of the adjoining land does not want to have to pay for fencing costs. However, the terms of each covenant should be carefully assessed on a case by case basis to determine how long the covenant lasts and who it binds.
- Private agreements: You may have had prior discussions with your neighbour where you agreed that contributions will not be equal. A reason for this may be that the Occupier is situated on relatively higher ground and does not benefit from the fence to be erected.
It is important to have all agreements in writing and parties may wish to consider registering a fencing covenant on the titles (sections 5 and 7, Fencing Act). A registered fencing covenant binds the land and remains in place for 12 years (sections 5 and 6, Fencing Act).
- Your lease terms/ Unit titles: If you own a cross lease property, check the terms of the lease. Do you require your co-lessor’s consent to build or relocate a fence? Where the fence is on the common area (as opposed to an exclusive use area), it makes up part of the common property and all works must be a joint collaboration between the co-lessors.
Likewise, where you have a unit, the consent of all unit owners will be required for a fence to be built on the common property.
- Understand your neighbour: During the negotiation process, it is important to understand the reasons why your neighbour may be unwilling to compromise or contribute for the fencing works.
Is your neighbour ‘losing’ land that they thought was theirs? Do they prefer the land to remain unfenced for the purposes of future subdivision or construction? Do they disagree with the colour or materials you propose to use? Do they believe the cost is too high and a cheaper quote could be obtained?
How much information you obtain may depend on the relationship you have with your neighbour. Cultivate and encourage a positive relationship to help facilitate the best possible outcome for all parties involved.
- An ‘adequate fence’: If there is an existing fence on the boundary line which you wish to ‘upgrade’ with your neighbour’s contribution, one of the most important question to consider is whether the current fence is adequate without need for modification (section 9, Fencing Act).
An adequate fence is not necessarily a fence at all. A hedge or a wall may be perfectly adequate for large rural sections. An adequate fence in most circumstances, is not a high-security, electrical fence with the latest technology, and does not need to be wrought iron or lilac coloured to satisfy your personal wants and desires.
Whether a fence is adequate or not may depend on a number of factors namely, the area where you live (for example, residential or rural), the level of privacy and level of security the current fence provides or fails to provide, whether there are pets or livestock on the land, and what may be appropriate to the neighbourhood. Be careful not to demand contribution by overstepping the fine line between adequacy and personal preference.
What is a Fencing Notice?
A Fencing Notice should contain the following details (section 10, Fencing Act):
- The description of the boundary to be fenced.
- The nature of the work to be carried out. For example, whether you propose to build a new fence, or repair an existing fence.
- The type of fence and works proposed, providing as much detail as possible on material, design, colour and height etc. of the fence.
- The method of construction noting the name of the contractor.
- An estimate cost of works with a copy of the contractor’s quote/ estimate attached.
- How the cost will be divided between the parties.
- How materials will be purchased or supplied. For example by the contractor (?) etc.
- The date the works will commence.
(See Form 1, Schedule 1 of the Fencing Act for a template Fencing Notice).
The Fencing Notice must state that the Occupier has 21 days from the date of service (Notice Period) to dispute the Notice and a failure to do so means the Occupier is deemed to have consented to the proposed works.
Disputing a Fencing Notice – Cross Notices
If your neighbour disputes the Fencing Notice within the Notice Period, they will serve a Cross Notice objecting to the proposed works before the expiry of the Notice Period (section 11, Fencing Act – see also Form 2, Schedule 1 of the Fencing Act for template Cross Notice). The substance of the dispute may relate to all or any specific details of the Fencing Notice.
Should parties fail to reach an agreement, you may apply to the Disputes Tribunal (for claims under $30,000) or the District Court for consideration.
Carrying out the Fencing Works
If you have served a Fencing Notice and your neighbour has not expressed any objections, you may proceed to begin the proposed works. You have 28 days from the end of the Notice Period to begin your proposed works (Prescribed Period) (section 14, Fencing Act). Should you fail to begin works within the Prescribed Period, either party may begin work within 90 days.
If neither party begins work within the 90 days, all Fencing Notices and Cross Notices issued lapse and a new Fencing Notice will be required to start the process again.
Carrying out Fencing Works on your own land without issuing a Fencing Notice
Where no compromise can be reached, or where you wish to avoid negotiations with a difficult neighbour altogether, you may decide to build a fence on your own land as opposed to one on the boundary line. Any structure built on your land is a fixture on the land and is your property and your neighbour does not have a say on whether your erected fence is adequate or otherwise. However, the risk of this decision is that should your neighbour decide to erect a fence on the boundary line, you may also become liable to pay half of the cost of the boundary fence they have erected.
If you have any questions about boundary fencing, please get in touch with our Property Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.