Fencing disputes rank alongside such things as noise complaints and arguments over trees as hot button topics between neighbours many New Zealand homeowners love to read.
It’s relatively easy to become involved in one, though.
The Citizen Advice Bureau has dealt with more than 2600 enquiries on fences and boundary issues over the past year, accounting for about half of all enquiries it received about neighbour-related issues, says Louise May, the organisation’s national policy advisor.
Some of the questions were linked to ongoing disputes between neighbours and some were just homeowners wanting information about their rights and responsibilities, May says.
So, how can disputes over fences be resolved so that both parties remain on speaking terms with each other?
Here’s what you need to know.
What if a homeowner wants a new fence or to fix an existing one?
Before starting any work on a fence, a homeowner should ideally discuss it with their neighbour and get their agreement on a plan for the work, including the costs, May says.
May advises homeowners to put the agreement in writing.
Who’s responsible for paying for it?
Generally, neighbours on either side of a boundary fence are responsible for sharing equal costs of building, repairing or replacing an “adequate” boundary fence.
An adequate fence is one that is “reasonably satisfactory” for the purpose it is intended to serve, May says.
If an agreement can’t be reached, but one party wishes to go ahead and require their neighbour to pay half of the costs, they need to inform their neighbour in writing by serving them with a fencing notice.
However, there are situations where the costs do not have to be shared equally, such as where the fence is damaged by one of the neighbours; one of the parties wants a more expensive fence than is needed; or where there is a contract, covenant or agreement that states how the neighbours will share costs relating to the properties, May says.
Homeowners should keep their proposal reasonable and their neighbour is entitled to object if they disagree about what is appropriate, according to Consumer New Zealand.
What if the fence is damaged by my neighbour?
A homeowner who damages a fence is liable for the costs of repair or replacement, May says.
For example, if overgrown vegetation damages an otherwise adequate fence, then the person who owns the vegetation should pay for the fence’s repair or replacement, says Abby Damen, communications and campaigns adviser at Consumer New Zealand.
That said, homeowners would need to get something like a builder’s report to prove this.
What is a fencing notice?
If parties in a dispute fail to reach an agreement or one of the parties refuses to contribute half of costs, Consumer New Zealand points to a formal process.
First, the homeowner seeking action must serve their neighbour with a fencing notice, Consumer New Zealand says.
A fencing notice isn’t necessary if both parties already agree on sharing costs — only when one party is compelling the other to pay half, May says.
“If you reach an agreement with your neighbour about the fence and how you will share the costs between you, then you don’t have to serve a fencing notice — though it is good to have your agreement in writing,” May says.
May says the law doesn’t require people to have discussed the issue first with their neighbour before serving a fencing notice, but they would ideally have had a conversation with them before taking this step.
What should be included in a fencing notice?
The notice should say that it is served under the Fencing Act 1978 and contain the names and addresses of both parties, according to Consumer NZ.
It should describe:
- The boundary to be fenced;
- The type of the fence to be built;
- Who will build the fence (for example, by a contractor, by one or both neighbours);
- The estimated total cost (to be shared equally or otherwise specified);
- How materials will be purchased or supplied; and
- The start date of the work.
The notice should also explain that the other party has 21 days to object to any aspect of the proposal and make any counter proposals.
It should also state that if the neighbour claims they are not liable for payment, they need to provide the name and address of whoever they believe is liable in the same timeframe.
It should also state that if no objection is received, the neighbour will be deemed to have agreed to the proposals and will be liable to share the cost accordingly.
Homeowners should remember to sign and date the notice and keep a copy for themselves, according to Consumer New Zealand.
The notice can be delivered by registered letter or in person, Consumer New Zealand says.
A template for a fencing notice under the Fencing Act can be found here.
What if the other party disagrees with a fencing notice?
If the other party disagrees, they can serve a cross-notice.
They can object to part or all of the proposals if they believe the existing fence is adequate or think their proposal is excessive. They can also object to being asked to pay if they don’t own the property.
This cross-notice should also be delivered by registered letter or in person.
What should be included in a cross-notice?
The cross-notice should detail the objection and any counterproposals. It should also state that it’s served under the Fencing Act.
A template for a cross-notice under the Fencing Act can be found here.
How can disputes be resolved?
Damen says if people still can’t agree on a solution, they can opt for mediation, arbitration, the Disputes Tribunal or file a claim with the District Court.
May says the Disputes Tribunal can deal with claims under $30,000 and is cheaper, quicker and less formal than going to court.
“There are no judges or lawyers involved — instead, a trained referee hears about the dispute from all parties involved and can make a binding decision that can be enforced by the courts,” May said.
“If a claim is over $30,000, it can go to the district court, which can hear civil claims for up to $350,000. You can make a civil claim on your own, or with the help of a lawyer. Legal aid is available in some cases.”
What if a fence needs to be re-built or fixed immediately?
In emergency situations where a fence is damaged or destroyed in a sudden accident and needs immediate work, either neighbour can go ahead and get repairs done without providing a fencing notice and can still recover half the costs from their neighbour, May says.
However, if people do not notify a neighbour before repairing or building the boundary fence and the work wasn’t urgent, a neighbour can refuse to pay towards the cost of the work, she said.
Is a building consent required for building a fence?
A building consent is usually not required for fences up to 2.5 metres high.
May suggests people make an effort to have good communication with their neighbours and try to reach an agreement.
“After all, you have to keep living next door to each other,” May says.
“Learn about your legal rights and responsibilities, and before any work takes place on your property’s boundary, make sure you have an agreement in writing or have formalised things through using a fencing notice,” she says.
“Taking the time to do things correctly can help to avoid potentially time-consuming, stressful and costly disputes further down the track.”
rnz.co.nz
