Over a year ago Brian received a notice from Dick requiring Brian to pay towards some new boundary fencing. Nothing happened until recently when Dick built the new fence. Part of the original fence had not been built on the true boundary because the land was steep. Dick replaced this part with a fence on the true boundary. The new fence built on the steep land was not stock proof.
Brian had heard of the Fencing Act and thought he was going to have to pay half the cost of the new fence. He was pleased to hear that he would not have to pay half the cost of the new fence because Dick had waited too long after giving Brian the notice before building the fence. Even if Dick had complied with the time frames in the Fencing Act, Brian would not have to pay for the new fence if the original fence was an “adequate fence”.
The duty to fence under the law
Except for a duty to fence the boundaries next to a road to prevent a nuisance to users of the road (for example, danger from wandering stock), and for the duties imposed by the Fencing Act 1978, an occupier of land has no legal duty to fence the boundaries.
The Fencing Act 1978
This Act sets out rights and responsibilities of the occupiers of adjoining land in relation to their boundary fencing. (The occupier of the land is the owner of the land or the tenant where the lease is for more than 10 years.) The Act is subject to any agreements that the occupiers make between themselves. Fencing agreements can be registered against the titles to the affected properties and will bind future occupiers of the land. They expire after twelve years.
Is there an adequate fence?
An “adequate fence” is one that is reasonably satisfactory for the purpose that it serves. This will depend on the particular circumstances. Just because the fence is one of the types of fences described in the Act does not necessarily mean that it is an adequate fence. If there is no adequate fence, an occupier can ask the occupier of the adjoining land to share equally in the cost of any boundary fencing. Any boundary fence should be placed as near as practical to the boundary line.
If you can’t reach agreement
If you want your neighbour to contribute towards the cost of the fencing and you can’t reach agreement, then you must comply with the Fencing Act. All notices must be in the form set out in the Act. If you do any work on the fence before you have complied with the Act, you will not be able to require your neighbour to pay for any of the fence. The process is:
- Serve a fencing notice. Your notice must set out details of the fencing you propose.
- Objection to a fencing notice. Your neighbour has 21 days to object by serving you with a cross notice. For example, your neighbour could object if the existing fence is adequate. If your neighbour does not serve a cross notice, the proposals in your notice are taken as accepted.
- Still can’t agree? If you are still unable to reach agreement on the work to be done, either of you may apply to the District Court to determine the matter. The Court can also make orders stating where the fence should go if it is impracticable to erect it on the boundary. If the fence is not on the boundary, the Court can require one occupier to pay for the use of the neighbour’s land.
- Complete the work on time. If you do not complete the work within the times set out in the Act, then you will need to start the process again.
Good law and good neighbours
The Fencing Act aims to set out fair rules around the building and repair of boundary fencing so that neighbours can remain good neighbours while they negotiate the fencing of their common boundaries.
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. Find out more about us at www.nwm.co.nz