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In our line of work, we often encounter disputes between neighbours. Disputes relating to shared fences are very common. Who pays for the cost of a new fence? What if part of the current fence has fallen into a state of disrepair? What do I do if my neighbour destroys our fence? The answers are found in the aptly named Fencing Act 1978.
The Act governs the rights and responsibilities of neighbours in regard to their shared boundary fences. The general rule under the Act is that the occupiers of adjoining properties share the cost of work on a boundary fence unless there is a covenant, contract or agreement to the contrary. If there is no fence in place between you and your neighbour or your old fence is fully or partially destroyed, due to no fault of either of you, you are both liable for the cost of a new or replacement fence. If your neighbour damages or destroys the fence, they are responsible for repairing or replacing it.
While the matter is straightforward when there is no fence, neighbours often disagree if work is needed on an existing fence. A common situation is that a person seeks a contribution to do work on their shared fence, but the neighbour does not see the point in the work and does not want to contribute. The question here is whether the existing fence is ‘adequate’.
Any fence covered by the Fencing Act must be ‘adequate’. An ‘adequate’ fence is a barrier that in its "nature, condition, and state of repair, is reasonably satisfactory for the purpose that it serves or is intended to serve". This broad definition means that whether a fence is ‘adequate’ will be a judgement on the facts at hand. For example, a fence to keep sheep in their paddock may be adequate for that purpose, but would not necessarily be adequate as a boundary fence between residential properties.
If you want your neighbour to contribute to work on your shared fence, you must give notice of your intention to do so. This is called a ‘Fencing Notice’. It must contain information that:
If your neighbour does not agree with the proposal in the Fencing Notice, they have 21 days to serve a cross-notice. This cross notice must outline what the objections are and contain any counter proposals they wish to make. If no cross notice is received within the 21 days, consent to the work is deemed to have been given, you can start work accordingly and the neighbour must contribute to the cost.
As a last resort, if both neighbours cannot agree, the District Court has jurisdiction to determine the matter in dispute.
There are few disputes more unpleasant than those between neighbours. A fence is one of the few things neighbours share. Check the Act before you discuss the state of your fence with your neighbour.
If you have any further questions about anything mentioned in this article or need assistance with a fencing dispute, please do not hesitate to contact us 03 377 2900 / law@mmlaw.co.nz).