Most of us would prefer to get along well with our neighbours, but the unfortunate reality is that there will be times when you find yourselves disagreeing. In our experience, decisions about fencing are one of the most common causes of disputes between neighbours.
Where possible, it’s always best to negotiate and agree on fencing arrangements directly with your neighbour. This approach is generally the most cost-effective and more likely to ensure that a friendly relationship is maintained. When coming to a private fencing arrangement with your neighbour, it’s essential that the agreement you reach is clearly recorded.
If you find yourself in a situation where you can’t reach an agreement with your neighbour, you may need to seek legal advice about the options available.
What should a fencing agreement include?
The agreement should include details of any existing structures or planting that is to be removed, who will remove it, what fencing is to be put up in replacement, where exactly that replacement fence will be positioned, its dimensions, who is responsible for each task and how the expenses are to be shared between neighbours.
To ensure enforceability, the agreement should be signed by all parties named on the titles to the neighbouring properties. It may be advisable to speak with a lawyer if you want to ensure that the agreement is recorded effectively.
What process should I follow before constructing a fence?
If you are wanting to build a new fence (or upgrade an existing one) on the boundary between your property and your neighbour’s, you are obliged under the Fencing Act 1978 to have a discussion with your neighbour about the proposed fence.
You should notify your neighbour about your intentions before starting any fencing construction work. If you don’t follow the correct procedures set out in the Fencing Act 1978, your neighbour will not be required to contribute to the cost of the fence.
How should I notify my neighbour?
According to the Fencing Act 1978, notice must be given to your neighbour advising that work is to be done and that you would like your neighbour to contribute to the cost of that work. If you are proposing that the cost be split unequally, this should be set out in the notice. The notice should also specify the boundary or line of the fence along which the fencing work is to be done, the nature of the proposed work and the materials to be used. In addition, it should set out the consequences of failing to comply with the notice.
After being served with this notice, your neighbour has 21 days to respond. If they don’t agree with what you have proposed, they can serve a cross-notice, which should outline their counter-proposal regarding the fence. If you don’t respond to the cross-notice, you will be deemed to have accepted your neighbour’s proposal.
If your neighbour doesn’t respond to your notice, you are entitled to undertake the work as it is set out in the notice, assuming you have served the notice correctly and followed all procedures outlined in the Fencing Act 1978. In this instance, the construction work should be carried out in a timely manner.
Are neighbours required to split fencing costs equally?
Your neighbour can be obliged, under the Fencing Act 1978, to contribute half the cost of the fence, as long as the cost is for an ‘adequate’ fence – one that is deemed satisfactory for the purpose that it serves. This means that if one neighbour wants to construct a more expensive fence than the other neighbour, one party may have to bear the additional expense.
Therefore, if you would like to erect a high-quality fence, you should be willing to meet most or all of the fencing costs. Your only other alternative, should you wish to split the cost of a high-quality fence equally with your neighbour, is to make a claim under the Fencing Act 1978. However, you are very unlikely to achieve a satisfactory result with this type of claim.
Ensuring you comply with the legal requirements in relation to fencing can be a confusing process. If you need any assistance following the procedures set out in the Fencing Act 1978 or if you are engaged in a boundary dispute with your neighbour and would like legal advice, please get in touch with Jess or contact reception.
P/ 09 489 9102
Jessica recently graduated with a Bachelor of Laws (Hons) and Bachelor of Arts at the University of Auckland. She was admitted to the bar in August 2018.
Jessica enjoys the diversity of her role as a Law Graduate and the opportunity to work with and learn from all of the firm’s solicitors. She particularly enjoys seeing each solicitor work through complex issues within their specific areas of practice.
Note: This post is brief and general in nature. You should not treat it as legal advice and should seek professional advice before taking any action in relation to the matters dealt with in this post. Armstrong Murray accepts no liability for losses suffered by any person or organisation who may rely directly or indirectly on this post.