Disputes between neighbours over boundaries and fences can be very unpleasant. Disputes can arise over the significant cost of boundary fencing rural properties and also over the type and location of boundary fencing.
Fencing issues between Brian and Dick
Originally the fence between Brian’s and Dick’s farms had not been built on the boundary where the land was very steep. The fence along this steep part had been built inside Dick’s farm.
Dick had served a fencing notice on Brian requiring him to contribute towards a new fence to be built on the true boundary. Dick did nothing for over a year and then he replaced the fence along the steep part with a fence on the true boundary. The replacement fence was not stock proof and Brian was no longer able to use Dick’s land which was previously on his side of the fence.
Brian had heard of the Fencing Act and thought he was going to be legally liable to pay half the cost of the new fence. However, Brian took legal advice and found this was not the case. Under the Act a boundary fence should be placed as near as practical to the boundary line, but as this was impracticable here it could be erected as close as practicable to the true boundary. As the original fence had been an “adequate fence”, and because Dick had not built the new fence within the time required under the Act, Brian should not have to pay half the cost of the new fence.
The Fencing Act 1978
The Fencing Act 1978 governs the construction of boundary fences and the liability of adjoining “occupiers” to contribute to their cost. An “occupier” is an owner or a tenant with a lease for more than 10 years.
Agreements between neighbours override Fencing Act
The Fencing Act is subject to any agreements that landowners make between themselves. Fencing agreements can be registered against the titles to the affected properties. If the agreement is registered, then any future occupier of the land will be bound by the agreement. However, the registered agreement only lasts for twelve years.
Is there an adequate fence?
An “adequate fence” is one that is reasonably satisfactory for the purpose that it serves. If the fence is not adequate the cost of any boundary fencing must be shared equally between adjoining occupiers (so long as the procedures in the Fencing Act are followed).
Notices must be served
An occupier who wants the neighbour to contribute towards the cost must serve a notice on the neighbour setting out the work proposed.
A person served with a fencing notice has 21 days to object to the proposed fence by serving a cross notice. Objection could be made because the existing fence is adequate or the proposed fence is more than adequate. If a cross notice is not given, the person served with the notice is taken to have accepted the proposals in the original notice.
Complete the work on time
An occupier who has served a fencing notice must complete the work within the times set out in the Act, otherwise he or she would have to start the process again to obtain a contribution towards the costs.
Neighbour must agree to boundary fencing work
Before doing any work on the boundary fence an occupier must obtain the neighbour’s agreement to the work, even if he or she is happy to pay all the costs of the work.
Still can’t agree?
If adjoining occupiers can’t reach agreement as to the type and location of the fence, then either may apply to the District Court to resolve the matter. It is important to remember if you do work on your boundary fence without obtaining agreement from your neighbour you could be facing a Court order requiring the fence to be removed, and if you do not follow the procedures under the Fencing Act you may be unable to obtain any payment from your neighbour towards its cost.
Please email me at [email protected] with your ideas for future articles. Keep an eye out for next month's column, where I will discuss another relevant rural legal issue.
Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.
