Picture this: a classic showdown between neighbours, with the humble fence caught in the middle. This has the potential to turn nasty so read on to get an understanding of the laws around fences.
According to the Building Act 2004, you're free to erect a fence under two meters high without the need for any council green light. Simple, right? Wrong. It's not all smooth sailing when land covenants swoop in, dictating everything from height to colour. And if your house falls under the historic heritage category, brace yourself for more restrictions.
A fencing covenant is an agreement between two parties where one party may not be required to contribute towards the costs of erecting a fence or the costs of any work to be carried out on a fence. If a fencing covenant is registered after 1 April 1979, it will expire automatically 12 years from the date it was registered. Subject to this, the burden of a registered fencing covenant will run with the land. The benefit of a fencing covenant will not bind any subsequent purchasers of the adjoining land (only bind the original parties). It is common for developers to register these, to avoid being liable for fencing costs when they sell lots once titles have issued and they may remain an owner of some adjoining lots in the subdivision.
A fencing agreement is similar to a covenant except it allows the benefit of the agreement to run with the land and be passed on to any subsequent owners.
But what if there's no valid fencing covenant or agreement?
Section 9 of the Fencing Act 1978 (Act), will answer your questions about who pays for the erection of a new fence or any repairs required between adjoining lots. The Act sets out certain circumstances (e.g. where one party causes the damage to the fence) and the process of providing a fencing notice and the timeframes that apply for providing a response. Generally, the rule is 50/50 shared costs between neighbours but some neighbours may agree to say a 70/30 split for example, because one neighbour may want a certain expensive style of fence whereas the other neighbour was keen on a more affordable option. It is always best to talk to your neighbours first to see if you can reach an agreement before proceeding with issuing a Fencing Notice (see section 10 of the Act) and potentially taking the matter to the Disputes Tribunal.
An “adequate fence” is not necessarily the type of fence you may have in mind. Depending on the area or land, a high-security, modern fence that you may be after may not be considered reasonable. For example, in a rural setting just a hedge or farming fencing may be considered as adequate.
The Act sets out a very specific process that must be followed by any owner who wants their neighbour to contribute to the costs of any fencing work. It is self-explanatory and easy to follow. You can also find sample notices and cross-notices online and detailed information regarding the steps to be taken by both parties where there is no fencing covenant or agreement in place.
The first step is to serve a notice on your neighbour (if an agreement could not be reached). The notice must contain specific matters such as a description of the boundary along which the work will be done, information about the proposed works to be undertaken, an estimate of the costs for the work and details of the consequences of failure to comply with the notice.
If your neighbour does not agree with what is proposed in the notice, an objection can be made within 21 days by serving a cross-notice. Your neighbour may propose a different approach in their cross-notice. By way of an example, they may think that the existing fence is adequate or that the proposed new fence is too expensive. Notices should not be ignored. If you and your neighbour cannot agree, you can take the dispute to the Disputes Tribunal. Under section 24A of the Act, the Disputes Tribunal can deal with fencing disputes if the dispute is regarding an amount up to $15,000 (or $20,000 by agreement between the parties).
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Your neighbour will not be required to contribute to the costs of erecting or carrying out work on a fence where:
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The above gives you a snapshot of the ins and outs of the law around fences. Just remember, communication is key to keeping the peace in the neighbourhood.
You can contact the team at Schnauer & Co. by getting in touch with Kim Hunt.
Kim Hunt
Senior Registered Legal Executive
Email: khunt@schnauer.com
DDI: 09 892 0351
