Fencing Law NZ: The Fencing Act 1978
2 September, 2020 | Nathan Tetzlaff
So, you’ve just bought or built a house, and your attention has turned to your fencing requirements
Any fence on a shared boundary will benefit both you and your neighbour, so it’s only fair that the cost of the fence should be shared by both parties. Neighbours can often agree on these matters without further assistance. Any agreement is enforceable and may be registered as a fencing covenant on the properties’ titles.
But what if you and your neighbour can’t agree?
The Fencing Act (1978)
Luckily, your legal rights are set out in the Fencing Act 1978, which provides that neighbours must each pay half the cost to do work on an adequate fence. This includes building a fence where there isn’t one, replacing a damaged fence, or doing repairs. All you have to do is follow the process below:
Obtain a Quote
Your neighbour is only liable for half the cost of an adequate fence which means one that is reasonable in the circumstances. You and the neighbour are free to agree on a better than adequate fence if you wish. In any dispute over the standard of fencing, all the circumstances will be relevant, for example, the size of the properties (and whether they are urban or rural), the needs of each neighbour, any covenants attached to the properties that must be complied with, and considerations such as how close the houses are to the boundary.
Once you decide what sort of fence you want the next step is to get a couple of quotes so that you can discuss this with your neighbour and attach the quote(s) to your fencing notice. In most cases it is a good idea to discuss your plans with your neighbour to try to reach an amicable agreement before sending a formal fencing notice.
The Fencing Notice
Even if the neighbour has agreed, a fencing notice should then be handed to them (or be sent to them by registered post) and should include reference to:
- The boundary to be fenced;
- The type of fence proposed;
- Who and how the fence would be constructed;
- The estimate of costs; and
- When the work will be done
The notice should also be clear that your neighbour has 21 days to serve a ‘cross notice’ or else they will be deemed to have accepted the terms in the fencing notice, including liability to pay the amount proposed.
After 21 days, if you have not received a cross notice you are free to erect the fence and require payment from your neighbour for their contribution, as set out in the fencing notice. If your neighbour refuses to pay you can make a claim to the Disputes Tribunal (if the amount you are seeking is less than $30,000).
If your neighbour does not agree with the terms of the fencing notice for some reason then they may issue a cross notice in response, within 21 days. This must set out why they object and may contain a counter proposal.
If the parties cannot agree you can ask the Disputes Tribunal to decide the matter. In the meantime, you should not proceed with the proposal in the original fencing notice (unless you have both agreed) because you will be unable to recover any of that expense.
If you are taking your dispute to the Disputes Tribunal, it often helps if you seek legal assistance to help prepare your argument.
In any legal situation there will be unusual or tricky situations to consider. In fencing, these include non-traditional fences, or where a fence is required by law.
The Act is wide enough to apply to things like hedges, streams (natural or artificial), culverts, embankments, and retaining walls, if these act as boundary dividers between two properties. This could mean that the costs of constructing and maintaining these could be claimed, if this were reasonable in the circumstances.
Where there is a swimming pool close to the boundary and the required fence around the pool is part of the boundary fence, the cost of that part of the fence is solely the responsibility of the pool-owner.
Help with the Process
Schedule 1 of the Fencing Act provides a suggested form of fencing notice and cross notice to guide the process. Schedule 2 provides examples of the types of fences which will usually be considered adequate in an urban or rural setting.