Fencing – Get it right

You can change friends but not neighbours … or so the saying goes.

So it’s all the more important to try to maintain friendly – or at least cordial – relations with your neighbours. When it comes to boundary fences, these relationships can come under additional pressure, so it’s important to do things well and to understand what your rights and responsibilities are in the event of dispute.

The starting position is that you and your neighbour can simply agree on how to handle building a new fence or changing an existing one.  We encourage you to try this first as it will almost certainly save costs, and also avoid unnecessary friction.  If you can agree, then this needs to be recorded formally.

The agreement should include;

  • What structures or flora are to be removed, how and by whom;
  • Clear details of the new fence to be erected, including its dimensions, materials and exact location;
  • Who is responsible for each step; and
  • How the costs are to be split.

The agreement should also be signed by all the owners of both properties.

WHAT HAPPENS IF YOU DON’T DO THIS?

If you just box on with a new fence, without securing such an agreement – for whatever reason – then you run the risk of, at the very least, having to bear the costs of the fence alone.

In order to secure the statutory authority for the sharing of the costs of a new fence you need to follow the Notice provisions of the Fencing Act 1978.  Notice must be given to your neighbour advising:

  • That fencing work is to be done.
  • That you would like your neighbour to contribute to the cost, (either equally or in what percentage or amount).
  • Specifics of the boundary or line of the fence for the fencing work.
  • Details of the proposed fencing work and the materials to be used.

The notice should set out the consequences of failing to comply with the notice.

Your neighbour then has 21 days to respond. If they don’t reply to the notice, you may go ahead with the fencing work as detailed in the notice, provided you have served the notice properly. In this situation you should also complete the work in a timely manner.

If your neighbour doesn’t agree with what you have proposed, they may serve a cross-notice on you, which should outline their counterproposal regarding the fencing work. If you don’t reply to such a notice, you may be deemed to have accepted your neighbour’s counterproposal.

DO THE COSTS HAVE TO BE SPLIT EQUALLY?

No. Either party could require a different sharing regime, for example one party might do the actual work themselves, thus requiring a lower percentage of the costs.  The default position under the Fencing Act 1978 is that your neighbour will be responsible for half the costs for the construction of an “adequate” fence. The legislation defines this as “a fence that, as to its nature, condition, and state of repair, is reasonably satisfactory for the purpose that it serves or is intended to serve”. So if the specification of the proposed fence is more than merely adequate, one party may need to pay the “difference”.

CONCLUSION

Always try to come to an agreement in advance of any work on the boundary of your property with your neighbours. Always document any agreement over the construction of a fence and if you cannot get agreement then you need to follow the requirements of the Fencing Act 1978.

More to explore

Changes to the Retirement Villages Act in the wind

The Retirement Villages Act 2003, a crucial legal framework for retirement village governance, is undergoing a very thorough review after two decades of service. With the retirement village sector and elderly population expanding significantly, the need to ensure the legislation remains relevant and effective is important. Why review? The Ministry