Most of us are familiar with the saying "good fences make good neighbours".
But what happens when that fence is no longer good?
Disputes involving boundary fencing are unfortunately quite common.
These types of disputes are governed by the Fencing Act 1978, which has as its starting point that agreements between neighbours are binding and not subject to the act's provisions.
The best solution is therefore for the parties to work together to reach agreement about whether a fence needs to be repaired or replaced, the scope of the work needed, who will carry out the work, the cost of doing so and how this will be shared.
As with most legal disputes, if you can work constructively with your neighbour to agree the best way forward, that will be better for everybody.
Always ensure that an agreement is documented and signed.
Of course, it is not always possible to reach agreement, and it is common for disputes to arise around whether any work is needed, or if it is, how extensive the remedy needs to be.
Often one party thinks that the fence, though not in good condition, is "doing the job", whereas the other party is wanting a brand new fence.
When the initial discussions don't come to a resolution, a notice can be served by one neighbour upon the other, commonly called a "Fencing Act Notice".
The notice needs to comply with the precedent notice in the act, and set out the proposed scope of works, type and location of new fence (subject to the specimen restrictions in the act), and the cost of the works.
The act provides for all parties to equally share the cost of repairing or installing the new fence, unless they agree otherwise or a limited set of specific circumstances apply.
The second party then has 21 days to respond to the Fencing Act Notice.
If the second party agrees to the proposal, or fails to respond within the required timeframe, then the works can proceed.
If the second party disputes the notice or makes a counter-proposal, and further negotiations do not resolve the issue, an application to the Disputes Tribunal (assuming the cost of the new fence is less than $30,000) must be made to determine the issue, or to the district court if the amount involved is more than $30,000.
I will be writing an article in future with more information on the Disputes Tribunal.
- Richard Small is a senior solicitor at Jacobs Florentine. The information above is general only and cannot replace specialist advice. The writer accepts no responsibility or liability for reliance on, or use of, this article.