If you want to build a fence between your property and your neighbour's, you don't need to argue forever about how it should be done or who will pay. The Fencing Act sets out your rights and obligations.
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Can I ask a neighbour to contribute to the cost of a new fence?
Yes. Generally, if you want to build a fence on a common boundary with your neighbour, or upgrade an existing one, you can expect the neighbour to go halves on the bill for an "adequate" fence. That is, one that is "reasonably satisfactory" for the purpose it is intended to serve.
Discuss your plans with your neighbour before you start putting in the fence-posts, though, and try to keep the proposal reasonable. They are entitled to object if they disagree about what is appropriate.
If you can not reach an agreement, or your neighbour refuses to pay half, there is a formal process you can follow. First, you must serve your neighbour with a "fencing notice".
What should the "fencing notice" say?
The notice should state that it is served under the Fencing Act 1978 and contain the names and addresses of both you and your neighbour. It must describe:
It must also explain that your neighbour has 21 days to object to any aspect of the proposal and make any counter proposals. It must say that if your neighbour does not accept liability, you must be told within 21 days the reason why and be given the name and address of whoever your neighbour believes is liable.
The notice must also say that if your neighbour makes no communication within 21 days, they will be deemed to have agreed to the proposals and will have to share the cost.
Remember to sign and date the notice, and keep a copy for yourself. You can deliver it by registered letter or in person. This is called "serving notice".
If you have trouble preparing your notice, refer to a copy of the Fencing Act. A sample notice is included in the schedules to the Act, as are some useful descriptions of various different types of fences.
What if my neighbour doesn't want a new fence at all?
They should serve you with a cross-notice. They can object to part or all of your proposal if they believe the existing fence is adequate, or think your proposal is excessive. They can also object to being asked to pay if they don't own the property.
This cross-notice must be served on you in person or sent by registered mail.
What should a cross-notice say?
The cross-notice must reach you within 21 days. It should detail your neighbour's objection and any counter proposals. It should also state that it is served under the Fencing Act.
A sample cross-notice is included in the schedules to the Act.
What happens next?
If you can't agree between you, your options to resolve the dispute include mediation, arbitration, a Disputes Tribunal or a District Court.
I'd like to build a smart iron fence, but my neighbour says it will be too expensive and wants a simple wooden one. Who gets to choose?
If you can't agree, you'll have to get the issue resolved as above. But your neighbour doesn't have to pay any more than half the cost of an "adequate" fence.
My neighbour has sold up and gone, but I still want the new fence. Do I have to issue a new notice?
A new neighbour means a new chance for a friendly relationship. You may find they readily agree with your plans. But if they don't, you will have to go through the process again.
My neighbour still objects to the fence and won't let the builder cross the boundary line while building the fence. Can they do this?
Yes. But if it happens, you can seek an order from a District Court or Disputes Tribunal to allow anyone building the fence to enter your neighbour's property at reasonable times and do whatever is reasonably required to build the fence.
You can head off this problem if you raise the issue in your fencing notice. This way, at the initial hearing the court or tribunal can authorise you, or anyone employed by you to build the fence, to enter your neighbour's property.
Exactly where should the fence go?
The fenceposts should be placed right on the boundary line or as near to it as practicable. If there are no posts, the middle of the fence should be on the boundary line.
We had a fence, but my neighbour destroyed it. Now they want me to help pay for a new one. Do I have to?
No. They were responsible for the damage, and they have to pay.
The fence has been destroyed in a storm, but my neighbour is overseas and I need to get it repaired quickly. Can I ask them to help with the cost when they get home?
Yes. If your neighbours are away, and a fence needs immediate repairs, you can do the work and recover half the costs from the other owner.
If the fence requires replacing, you should replace it with a comparable fence. But you can't upgrade the fence without your neighbour's agreement.
My neighbours have built a swimming pool near the boundary and are required by law to fence it in. Do I have to help them pay? Yes, but your contribution should not exceed the amount you would pay if the swimming pool did not exist. That is, half the cost of an "adequate" fence in that area of the boundary.
All work on the fence remains your neighbour's responsibility.
How high can my fence be?
You can usually build up to 2 metres in height without getting planning consent from the local council.
However, you should always check with the council to make sure. It may be that you live in a special heritage area or are affected by rules in the district plan that mean you cannot build your fence this high.
Mediation and arbitration
A mediator helps the two sides in a dispute negotiate a solution. An arbitrator imposes a solution. Both processes are private and voluntary, but once you agree to take part in an arbitration you are bound by the outcome. The courts will back an arbitrated settlement. A mediated outcome can be enforced by the courts only if you both agree to this happening before you start the process.
Both approaches are charged on a time basis, which you negotiate with the mediator or arbitrator. Contact the Arbitrators' and Mediators' Institute of New Zealand for help, or look in the yellow pages under Dispute Resolution.
A Disputes Tribunal can hear most claims relating to the Fencing Act or for property damage, provided the claim does not exceed $15,000 (or $20,000 if the parties agree) and does not relate to loss of light, sunshine or views, or the removal or trimming of trees.
A court can also hear claims relating to the Fencing Act or for property damage, including those issues just mentioned that a Disputes Tribunal cannot hear. Courts can award monetary compensation for damage caused by a tree, and can order that a tree be removed or trimmed.
Claims to a District Court will almost certainly require the help of a lawyer and can be expensive.
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