Sandra Goodwin: Neighbours at war

Fencing disputes can quickly escalate to confrontations. Photo / Getty Images

Boundary disputes can get tempers flaring, says South Island vice-president of the NZ Law Society, Andrew Logan.

Logan says: "A disagreement about where your boundary ends and your neighbour's starts can get heated quickly because most people feel like their home is their castle.

"They can get incredibly defensive and sometimes lose perspective and objectivity when they feel like it is somehow under attack, as can be the case during a boundary dispute."

Logan says these sort of situations usually scream out for some sort of considered informal resolution to avoid escalating into the high-profile, long-running court actions that occasionally make the news.

He recommends neighbours first try to resolve the situation through amicable non-confrontational discussion. For example, they might be able to resolve their differences in perception of the boundary by agreeing to split the cost of a survey to resolve the matter.

Boundary disputes between neighbours are a civil matter that police don't tend to get involved in.

They often involve fencing (see fact box), and most of the law relating to that is contained in the Fencing Act 1978.

However, there can be no fence in existence and neighbours can simply disagree about where one owner's property ends and another's starts, a situation covered by The Property Law Act 2007.

If neighbours can't reach agreement, one can pay a filing fee ($45 to $180 depending on the amount sought) for claims up to $15,000 or, if everyone agrees, $20,000, to take the self-help avenue of having the Disputes Tribunal consider the matter.

The property owner can choose to take the matter to the District Court instead.
But Logan says: "Once you're into court action $5000 or $10,000 would disappear quickly. And once you're in court you can't control the outcome, it will be decided by a judge. Whereas, if you're informally negotiating or in mediation, you still have some control."

Ongoing court action over boundary disputes occasionally costs in the order of $50,000 or more "but those sort of disputes are 'front page of the Herald' territory."

He points out that even if an owner wins a District Court action over a boundary dispute, they won't necessarily be awarded all their costs back.

"Courts work with a scale process which isn't necessarily dollar for dollar, so you could spend, say, $10,000 on lawyers' costs, win, and not necessarily get $10,000 back."

Because of the District Court's work volume, owners may face months of waiting to get these lower-level civil matters heard.

Logan says lawyers can advise owners about their rights and the remedies available.

He believes most experienced lawyers will recognise the situation if a dispute has already escalated into something nasty and try to 'step people back from the edge' to avoid them taking court action.

He says these disputes can take a huge toll on owners' stress levels and the future relationship between neighbours when they become unpleasant.

"People can obsess about it and it becomes all-consuming."

He recognises owners want to protect the value of their property, which is often their biggest single investment.

However, he says some owners are not willing to make any compromise to meet agreement with their neighbour over a boundary dispute because they consider it a matter of principle.

"People can be sticklers for principle. And often it's middle-class New Zealand who can afford to make it a fight." Boundary facts to consider when buying or selling a home:

• Actual boundaries were fixed by survey when the land was first subdivided and cannot be altered without the consent of anybody whose property is affected.
• When considering purchasing a property, it is always important to check the physical boundaries and to establish the boundary pegs, if possible, although sometimes they've been lost or removed, especially on older properties.
• Every title for a property will have a survey plan attached to it showing the boundaries. Buyers should look for obvious disparities between the existing layout of the section and the layout on the title.
• Just because there is an existing fence or hedge in place doesn't mean it designates the exact legal boundary.
• If a home owner selling their property knows there's something not right about the boundary or fence location and doesn't disclose it during the sales process, they can bear some liability for the misrepresentation.
• Law Society

BOUNDARY FENCES

• Fences must be on the boundary line (unless the true boundary is difficult to fence).
• Building and repairing costs are borne equally between adjoining owners.
• Before the fence goes up, ask your neighbour to contribute to the cost of the fence bordering your properties by following the procedures set out in the Fencing Act. You must estimate the cost and specify consequences of failure to comply.
• If correct procedure is not followed, the occupier of any adjoining land won't be liable to contribute to the cost of the fence.
• The fence must be appropriate to the type of setting (eg rural or residential).
• Subdivision developers usually exempt themselves from contributing to fence costs.
• It is possible to apply to a District Court for an order to remove or alter a fence that is detrimentally affecting land or obstructing a view.