If you do not proceed correctly the fencing of your boundaries can become a stressful activity. The Fencing Act 1978 lays down the process for making a fencing agreement and gives you guidelines on the parameters to build the fence.
Obviously, the fencing of a property's boundary can be a source of major stress and conflict between two neighbours and so I encourage you to do this in a non confrontation manner.
The topics covered in this section are:
- Purpose of the Fencing Act
- Agreement with your neighbour
- Other points to note from the Fencing Act
- Commonly asked fencing questions
The purpose of the Fencing Act was to legally and clearly set out the rights and responsibilities relating to fences between neighbouring properties.
The Fencing Act states, under section 22, that “the middle of the fence shall be upon the boundary line…or as near thereto as practicable”. Also the Act states that “no person is entitled to erect a fence that encroaches to any degree whatever upon any land of which he is not the occupier”. The Court can order the removal of any encroaching fence unless it is satisfied that “(a) that the degree of encroachment is minimal; and (b) that the encroachment in no way adversely affects the use and enjoyment of his land by the applicant”.
If you want to build a fence on the common boundary (not anywhere else), or you wish to mend or upgrade an existing inadequate fence, you and your neighbour (assuming that they own it), are required to go halves in the bill (50% of the cost each).
If you have never spoken to your neighbour before, you should introduce yourself to them. Be prepared to discuss realistic options and be prepared to compromise, you and your neighbour are highly likely to have differing opinions and a different idea of the budget.
A fence can serve a number of purposes, such as, privacy, wind protect, keep animals in or out, or for safety.
It may take several occasions to discuss and make a decision on the fencing, you may have been thinking about it for a while, however you neighbour may never have given it a thought. You are also likely to need to get three quotes or estimates for the work.
If you and your neigbour can agree to the fencing and the budget, then you should put in writing and both sign it, so that there is no confusion or disagreement in the future. Seeing in writing the amount you agree and the type of fence, height etc makes sure you both know what you are building.
An example of a letter between two neighbours agreeing to the fence is shown below:
A & B Smith of 1 Main Road, Wellington and C & D Jones of 3 Main Road Wellington agree to build the following fence on their common boundary.
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1.5 m high panel fence with wooden posts, stained red.
The cost of the new fence is $3,000 (including GST) and will be done by Fencing Works Limited.
A Smith 1/1/2008 C Jones 1/1/2008
Signed Dated Signed Dated
What to do if you don’t agree – serving a notice
If no agreement is reached, you must follow the process set out in the Fencing Act. The Fencing Act introduces the process of “serve a notice” giving details of the proposal in writing.
A notice must be made under the Fencing Act 1978, and must contain the following:
- Names and addresses of you and the neighbour.
- A description of the fence, location and builder.
- The material and estimated cost and where the materials are to be bought and paid for.
- The start date for the work.
- Advice to the neighbour that they have 21 days to object and make any counter proposals.
- Advice to the neighbour that if they think they’re not responsible for paying they have to let you know within 21 days giving the reason why and giving the name and address of whoever the neighbour thinks should be responsible.
- Advice to the neighbour that if they don’t reply to the notice within 21 days, they will be deemed to have agreed to the proposals and will have to share the cost.
The notice must be signed and dated, and a copy retained for yourself. You cannot start work during that 21-day period while you await a reply.
If you are the one receiving the notice, and you don’t agree with the proposal or don’t think it’s your responsibility, you can serve a cross-notice (within the 21-day timeframe) giving your reasons. It should also be signed and dated.
If there is no response within the 21 days after receipt of the letter then construction can proceed and the neighbour is obligated to contribute 50% of the cost. Once the 21 day period elapses, you must start work on the fence within 28 days. Please be sure that your neighbour has received the letter and that they were not away at the time.
How to disagree when a notice is served
If you reach a stalemate on notices and cross-notices, your options are then to go to mediation, arbitration, a Disputes Tribunal or the District Court.
Or you can simply build a fence inside the boundary on your own property. But you will have to pay for all of it yourself. And even then, your neighbour could still insist on a boundary fence at a later stage.
If no agreement is reached the final decision will be left to a Disputes Tribunal referee where the cost of the proposed fence is under $7,500. The tribunal has increased jurisdiction where the value of the fence is between $7,500 and $12,000 and the neighbours agree to refer it to the Tribunal.
Other points to note from the Fencing Act
Other points to note from the Fencing Act when building or altering a boundary marking fence:
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The height of the fence cannot be higher than two metres unless you get a building consent and, normally, planning consent from your local council.
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The fence should be placed on the boundary line. If it is going to go more on one side than the other, this needs to be agreed by the owner of that side. If the owner doesn’t agree you can seek a Court order where there is no other practical alternative.
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The Court may authorise you to enter the neighbour’s property if this is necessary to build the fence, even if the neighbour is not contributing to the cost of the fence, and vice versa.
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You can pay to make immediate repairs to the fence and recover half the costs from the other neighbour. If it has been destroyed and you need to replace it, it must be replaced with something comparable. But if you are responsible for the damage, for example, you flattened it with your car, you will have to pay to replace or fix it.
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The Act only applies to fences built since the Act came into force on 1 April 1979.
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