There are several important issues to consider when planning the construction of a boundary fence. This article highlights these issues, plus the usual rules regarding how costs are shared between parties and exceptions to these rules. Lastly, we examine ways to make progress when initial negotiations with the neighbour prove unsuccessful.
Matters to discuss with your neighbour prior to construction
Prior to a fence being constructed, you and your neighbour should discuss the below pertinent issues:
- height of the fence;
- building materials that are to be used;
- cost of the fence;
- location of the fence, such as on the boundary line;
- the timeline regarding construction of the fence;
- who will provide the materials and labour; and
- the division of the cost of construction.
If there is no adequate fence between two blocks of land, the occupiers of each property are legally required to contribute equally to the cost of a reasonable fence. Should an adequate fence exist already, your neighbour may not be willing to contribute towards the cost of any work on the fence. Further, your neighbour will not be liable to contribute towards fencing costs that you incurred prior to obtaining their approval (except for in the case of an emergency). If a fence is damaged or destroyed by a sudden accident or other cause and requires immediate work, either neighbour can carry out the work without notice, then claim half of the cost from the other neighbour.
The usual rule and exceptions
When building or upgrading a fence between your property and your neighbour’s, the price is typically split. There are exceptions to the rule however, such as when:
- there is a fencing covenant, contract or agreement to the contrary (which would be common in subdivisions, where the developer does not pay for the fence);
- the parties agree to pay unequal amounts; or
- one of the occupiers damages the fence and must pay the whole cost of repairs.
Dispute as to contribution
If your neighbour disagrees with what you think is an appropriate contribution towards costs and you are unable to reach an agreement, there is a formal process that you can follow. This includes presenting your neighbour with a “fencing notice”. An appropriate form of fencing notice can be found at Schedule 1 of the Fencing Act 1978 here.
The fencing notice will contain details of the owners and properties involved and describe:
- the boundary along which the fence will be placed;
- the type of fence that will be built;
- the method of construction;
- an estimated total cost of the work;
- how the materials will be purchased or supplied; and
- when construction of the fence will commence.
The fencing notice provides a 21 day window in which the neighbour must raise any objections, raise counter-proposals or dispute their liability to contribute. Importantly, if no objection is received, it is assumed that the neighbour agrees with the proposal and accepts liability to share the cost. In the case where counter-proposals are raised and you still cannot agree, you may wish to resolve the matter by mediation in the first instance, followed by arbitration, attending the Disputes Tribunal or District Court.
Please do not hesitate to contact Gaze Burt for any property related matter. We would be happy to assist you.