Boundary Fences
You have found the home of your dreams, and you love everything about it ... except the hedge between you and the neighbour. You would prefer a solid wooden fence. Is there anything you can do?
The neighbour’s dog keeps escaping and making its way into your garden through broken fence palings. When you ask your neighbour to fix the fence, they laugh and refuse, telling you to fix it if you’ve got a problem .... can you make them fix the fence?
The answer to both questions is, of course, that "it depends". The main thing to ask is whether the fence that’s already there is "adequate", or "reasonably satisfactory". That is, what sort of fence would a reasonable person build given the location and purpose of the fence.
If you live in the country, an "adequate" fence may well be one that is strong enough to keep the neighbour’s cows out of your vegetable garden. In the city, however, it may well be one that keeps your toddler children in, and neighbour’s dogs out.
Back to our examples. In the first example, if you live in a retirement enclave where people are unlikely to have small children or animals, a hedge is likely to be adequate. If, however, you live in neighbourhood popular with young families, it is arguable that a hedge would not be adequate. It might pay to look at other fences in the area to get a feel for what is commonplace.
If, having looked at the neighbourhood and compared 'your' boundary fence with others, you feel that the existing fence is inadequate, the Fencing Act 1978 sets out the process you need to follow. Your lawyer will be able to provide guidance if you are uncertain about the process or unable to agree what an adequate fence would be.
Where the existing fence would be adequate if it was in good repair, as in the second example of the neighbour with the trespassing dog, fixing the fence is the responsibility of both neighbours - and, under section 9 of the Fencing Act, your laughing neighbour needs to pay half the cost of the repairs.
If you do have a fencing dispute, the Fencing Act 1978 outlines the processes you have to follow. A copy of the Act is available free at http://www.legislation.govt.nz/. While this process is relatively straightforward, it pays to ask your lawyer to assist or check what you are proposing to do – especially if relations with your neighbours are less than cordial!
This article is brought to you by
Colette Mackenzie of Gibson Sheat Lawyers and its subsidiary
The Conveyancing Company, specialists in property law, mortgage broking, refinancing, buying and selling residential or commercial property, and subdivision.
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