As the daylight hours extend, so too does the list of summer jobs that have been building up over the past year. On that list for many will be replacing those rickety old boundary fences that surround your house. Before you rip them all down, we have a case study that clarifies why it’s so important not to rush.
John’s fence
John believes that his boundary fences should be rebuilt; he approaches his three neighbours to discuss this.
His first neighbour, Julia, disagrees with John and thinks the fence is doing an adequate job, but admits the fence is not aesthetically pleasing. She is not willing to pay for half of a new fence and wants to hear no more of the matter.
Toby and Mikayla are John’s second neighbours. They agree that a new fence is required, but want to put up a tall fence made from expensive materials.
John’s third neighbour, Brent, is a builder. Last year, he built a lean-to shed attached to the boundary fence without seeking John’s permission, breaking the existing fence in the process.
The Fencing Act 1978
The law that governs all fences, whether they be urban or rural, is the Fencing Act 1978. The key points concerning boundary fences covered under the Act are:
- That boundary fences need to be adequate
- If boundary fences are not adequate, adjoining occupiers are obliged to contribute equally to the cost of an adequate fence
- Alterations to an adequate fence cannot be completed without the consent of the adjoining neighbour
- Any damage is to be borne by the neighbour who caused the damage, and
- When neighbours refuse to contribute and cannot agree on any of the above, there is a specific disputes process laid out in the Act.
What can John do about his boundary fencing issues?
Adequate fence
An ‘adequate’ fence is defined in the Act, but how it is replaced will ultimately come down to whether the fence is fulfilling its purpose. If the fence between John and Julia’s properties meets the minimum standards, John cannot reasonably ask Julia to pay half just because it is an eyesore; it would need to be in a state of disrepair, dangerous or failing to provide adequate privacy before the Act would apply.
John’s options for this fence will be to either pay for the entire fence himself, after getting Julia’s consent, or he could follow the procedure in the Act by issuing Julia with a Fencing Notice outlining the fence he requires and giving her 21 days’ notice to respond. Julia could then give a cross-notice objecting to John’s proposal. If John and Julia cannot agree, they may need to apply to the Disputes Tribunal for a hearing to decide the matter.
More than adequate
Toby and Mikayla want to go above and beyond an adequate fence when rebuilding. John does not have to pay for anything more than an adequate fence under the Act, but both parties can reach a mutually beneficial agreement. Equal cost does not have to be financial so if neighbours can agree, one party can pay for the materials and the other can contribute to the labour costs.
Damage
Under the Act, the cost of repairing a damaged fence lies with the party who caused the damage; Brent must repair the fence. If Brent disagrees, John may need to go to the Disputes Tribunal.
Communicate
Communication is key when dealing with boundary fence issues. Neighbours are generally cooperative and you can usually reach a sensible agreement if you talk with them first. If no agreement can be reached, however, you can turn to the Fencing Act to see what your next steps could be.
If you would like to speak to our Property team about the Fencing Act 1978, or your fencing experience, please contact us here.
DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of this firm. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source. Copyright, NZ LAW Limited, 2020. Editor: Adrienne Olsen. E-mail: adrienne@adroite.co.nz. Ph: 029 286 3650.
