KEY POINTS:
Q. The boundary fence with out neighbour is in a poor state of repair and I would like to have a new fence built. I have always understood if a new fence is built my neighbour must contribute to the cost. Is that correct? If so, is there any limit on how much I can ask my neighbour to contribute? What if we cannot agree on the type of fence to build or have a dispute over its cost?
A. Yes you are correct. The Fencing Act 1978 requires owners of adjoining land to contribute equally to the cost of building an "adequate fence" between their properties.
An adequate fence is defined under the act 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".
Court cases have tried to further clarify what this means by asking "What sort of fence would a reasonable occupier erect given his purpose and the surrounding circumstances?"
So, whether the fence you are looking at building would be an "adequate fence", in terms of the act, will depend upon factual considerations and the nature of your properties.
If the fence is a straightforward fence for use between two residential properties, the act sets out examples of five different types of fences (with design specifications) which may be appropriate for an urban setting.
These include design specifications for: post and rail fences; close board fences; panel fences and masonry walls. The standards and design specifications for these fences are not mandatory. However, they may provide a good indication for what would be regarded as an adequate design standard for a fence if your proposed fence was ever challenged in court.
If the fence is in a poor state of repair, court cases have held that whether or not the fence is still an "adequate fence", involves consideration of both the structural integrity of the fence (what sort of state it is in and how much longer it might be expected to last) and aesthetics (how good the fence looks).
Courts have held that, even if a fence is capable of being "patched up" for a long time to postpone its collapse, there will come a time before that where no reasonable person would be prepared to put up with the fence any longer. If that is the case, your neighbour is required under law to contribute equally to the cost of building an adequate fence to replace it.
In terms of other legal requirements that might apply, if you build a fence that is more than two metres above the ground that supports it, the fence will require a building consent and be subject to the requirements of the Building Act. In addition, many (although not all) district plans define fences above a certain height (typically between 1.5 to two metres) as "buildings". This may mean you need a resource consent to build your fence if it is above a certain height.
Your best course of action is to approach your neighbour and see if your neighbour agrees that the fence needs to be replaced. If so, you may be able to agree on a design that suits both of you.
You and your neighbour are free to agree to build a fence to a higher standard than provided for in the Fencing Act or agree to share the costs in a different way than the equal shares provided for under the act (ie contract out of certain provisions of the act).
If you and your neighbour cannot reach an agreement, you can serve your neighbour with a notice setting out details of the fence you would like built and details of its estimated cost. Your neighbour has 21 days under the Fencing Act to object to the proposed work or issue a counter proposal.
If your neighbour does not respond in 21 days then your neighbour is deemed to have accepted the proposal.
Disputes under the Fencing Act can be heard by the District Court or the Disputes Tribunal (the Disputes Tribunal can only make awards of up to $7500).
* The information contained in Prime Assets is intended to provide general information in summary form current at the time of printing. The contents do not constitute legal advice and should not be relied on as such. Specialist advice should be sought.
