The Fencing Act 1908 sets out the legal framework for disputes between neighbours regarding the construction, maintenance, and repair of fences in New Zealand.
What is an "Adequate Fence"?
The Fencing Act 1908 refers to an "adequate fence". An adequate fence is defined as a fence that, considering its intended purpose, is sufficient to keep out any stock reasonably expected on the adjoining land, or, if no stock is involved, a fence reasonably sufficient for separating the lands of the adjoining owners [Source: Fencing Act 1908, s 2]. This definition is crucial in determining the standard of a boundary fence.
The "Notice to Fence" Process
Before commencing work on a fence, an owner must issue a formal notice to fence to their adjoining neighbour [Source: Fencing Act 1908, s 10]. This notice serves to inform the neighbour of the proposed work and their expected contribution.
What the Notice Must Contain
A notice to fence must specify:
- The boundary or line upon which the fence is proposed to be erected [Source: Fencing Act 1908, s 11(a)].
- The type of fence proposed to be erected [Source: Fencing Act 1908, s 11(b)].
- The materials to be used [Source: Fencing Act 1908, s 11(c)].
- The estimated cost of the fence [Source: Fencing Act 1908, s 11(d)].
- The proportion of the cost to be borne by each owner [Source: Fencing Act 1908, s 11(d)].
- A statement that the person served has 21 days from the date of service to object to any proposal in the notice [Source: Fencing Act 1908, s 11(e)].
Responding to a Notice
An adjoining owner who receives a notice to fence has 21 days to respond [Source: Fencing Act 1908, s 12]. During this period, the owner can:
- Agree to the proposals in the notice.
- Object to the notice, either entirely or to specific aspects (e.g., the type of fence or estimated cost) [Source: Fencing Act 1908, s 12(a)].
- Issue a cross-notice, which is a counter-proposal specifying a different type of fence, materials, or cost apportionment [Source: Fencing Act 1908, s 12(b)].
If the adjoining owner fails to respond within 21 days, the owner who served the notice may proceed with the proposed fence and recover half of the cost from the adjoining owner [Source: Fencing Act 1908, s 14].
Cost Sharing for Fences
Generally, adjoining occupiers are liable to contribute equally to the cost of erecting or repairing an adequate fence [Source: Fencing Act 1908, s 9]. However, there are exceptions:
- If one owner requires a fence of a higher standard than the other, the extra cost of the higher standard is borne by the owner requiring it [Source: Fencing Act 1908, s 17].
- If a fence is damaged by stock belonging to one owner, that owner may be solely liable for the cost of repair [Source: Fencing Act 1908, s 27].
Resolving Disputes: The Disputes Tribunal
If neighbours cannot agree on the proposals in a notice to fence or a cross-notice, or if there is a dispute regarding the cost or standard of a fence, the matter can be referred to the Disputes Tribunal [Source: Fencing Act 1908, s 13].
Disputes Tribunal Jurisdiction
The Disputes Tribunal is an informal forum designed to resolve civil disputes quickly and inexpensively [Source: Disputes Tribunals Act 1988, s 4]. It has jurisdiction to hear claims relating to fencing matters, provided the claim does not exceed $30,000, or $50,000 if all parties agree in writing [Source: Disputes Tribunals Act 1988, s 10(1)(a), s 10A].
What to Expect at the Disputes Tribunal
- Informal Process: Hearings are informal, and parties generally represent themselves. Lawyers are typically not permitted unless all parties and the Referee agree, or for corporate bodies [Source: Disputes Tribunals Act 1988, s 38].
- Role of the Referee: A Referee presides over the hearing. The Referee's role is to help the parties reach an agreement through discussion and mediation. If an agreement cannot be reached, the Referee will make a decision, known as an order, based on the evidence presented [Source: Disputes Tribunals Act 1988, s 17, s 18].
- Orders: The Tribunal can make various orders, including ordering one party to pay money to the other, ordering specific work to be done, or declaring the rights and obligations of the parties [Source: Disputes Tribunals Act 1988, s 18].
- Evidence: Parties should bring all relevant documents, photos, estimates, and any other evidence to support their case.
When to Seek Independent Legal Advice
Individuals involved in complex fencing disputes, or those unsure about their rights and obligations under the Fencing Act 1908 or the Disputes Tribunals Act 1988, may consider seeking independent legal advice. Information can also be obtained from Community Law Centres throughout New Zealand, which offer free legal assistance and information. It is important to understand the specific legal requirements and processes that apply to your situation.