Whether you are looking at putting up a new boundary fence, repairing an existing one or have concerns about what your neighbour plans to do with an existing fence, the Fencing Act 1978 (Act) may be able to step in and provide boundaries over what is or is not permissible, and what rights you have in relation to your fence.
The Act discusses the liability of adjoining occupiers to contribute to the costs associated with fences. An ‘occupier’ can be an owner of the neighbouring property or a tenant who has a lease of longer than 10 years. Having the ability to require an adjoining occupier to contribute to the cost of a fence can help where the stakes are high (the cost of an electric fence can come as a shock).
Is the fence adequate?
If negotiation with your neighbour has been unsuccessful, the first stage in any fencing dispute or agreement is determining whether there is an ‘adequate fence’ in place or not. This has been interpreted as being reasonably satisfactory for the purpose that it served at the time it was built – meaning that a rural fence may be viewed differently to a residential one. This is particularly evident with hedges.
There are a number of factors that can be considered when determining whether a fence is adequate. These can include privacy, security, noise reduction, child safety, aesthetics, animals, safety and/or state of repair.
If a fence does not meet the adequate fence test, then the cost of any boundary fencing is typically shared between adjoining occupiers in accordance with the Act.
Fencing Act Notices
Where an occupier believes a boundary fence is not adequate, and who wants the adjoining occupier to contribute equally to the cost of improving or replacing the fence, they should first discuss the matter with their neighbouring occupier. If agreement cannot be reached, they should serve a Fencing Act Notice (Notice) on that occupier which conforms with the requirements of the Act.
An occupier who has been served with a Notice has 21 days within which they can oppose the proposed fence by serving a ‘Cross Notice’. Such an objection could be on the basis that the existing fence already satisfies the adequacy test, or that the proposed fence would be beyond what is necessary. If no Cross Notice is served, the proposals contained in the Notice are deemed to have been accepted.
Where agreement cannot be reached using Notices and Cross Notices, a claim can be brought to the District Court or Disputes Tribunal (for claims under $30,000) for determination.
A person who has served a Notice under the Act may begin work after the expiry of the 21 day response period if no Cross Notice is served. If a Cross Notice is served they may begin work as soon as all differences between the parties are resolved.
An occupier who is entitled to complete the work must do so within 28 days of them becoming eligible to do so. If an occupier does not begin work within that time frame, either party may begin the work within 90 days. If no work is done by either party within the 90 day time period, all Notices and Cross Notices lapse and new agreements will need to be entered into or a new Notice issued.
If a fence is damaged in such a way that requires immediate repair, either occupier may complete the work without a Notice and may recover half of the cost from the other occupier afterwards. This is subject to certain exceptions where one of the occupiers caused the damage.
Hammering out the details
The Act is subject to any agreements that the occupiers make with each other. These agreements can be registered against the title to the property. This would have the effect that any subsequent owner of that property is bound by that agreement. This may be important to consider if a particular fence has regular problems. These agreements remain in place for 12 years.
If you are on the fence about what to do in your boundary dispute, or are being stonewalled by your neighbour when you try to discuss the issue, please contact our Litigation Team for assistance.