The Fencing Act 1978 (the Act) makes the occupiers of adjoining lands liable to contribute equally to work on a fence on the common boundary. However, to ensure that your neighbour contributes to a fence is not always that easy.
First, it has to be decided what is an appropriate fence? The Act requires the fence to be adequate which means a fence in a condition that is reasonably satisfactory for the purpose it is intended to serve. Obviously the type of fence or the adequate state of repair may be debatable. The Second Schedule to the Act provides specifications for four different types of urban fences and four different types of rural fencing which are described as “Specimen types of fence”. Interestingly, a live fence is given as one of the specimen types of rural fence but not for an urban fence. However, an adequate fence does not necessarily need to be of a type specified. It could well be possible that a hedge is an adequate fence in some cases in urban areas.
Now, if an owner wishes to compel the adjoining occupier to contribute to the fence, a Fencing Notice must be served. The Notice must specify the type of fence or repair work proposed, and the estimated cost of the work. How the cost is to be shared is also to be proposed.
The other occupier has 21 days to give a cross notice objecting to the proposed work and may make a counter proposal for the type of work or type of fence. If no cross notice is given the other owner is deemed to have accepted the proposal in the original notice.
If following a cross notice the parties are unable to agree on the work or type of fence, the matter has to be determined by the District Court or in some cases a Disputes Tribunal.
Clearly it is far better to reach agreement with your neighbour as to the type of fence or repairs required and to reach agreement as to how the cost of the work is to be covered.
If any work is done on a fence without agreement of the other occupier or without giving a fencing notice or obtaining a Court order, the cost cannot be recovered.
There is an exception to the requirements for a fencing notice if a fence is damaged or destroyed by sudden accident or other cause and immediate work is required. In such a case half the cost may be recoverable from the other owner but clearly it would be preferable to reach agreement to put the matter beyond doubt.
Generally the middle of a fence is required to be on the boundary but the occupiers can agree on a practical line for the fence which is not the boundary and this is often referred to as a “give and take” fence. If the parties cannot agree on the line for a give and take fence, a Court or Tribunal may fix that line.
When the vendor of a property retains the adjacent property, it is usual for the sale agreement to include a “fencing covenant” which excludes the vendor’s liability to contribute to the cost of fencing the common boundary. It is usual for this fencing covenant to be registered on the title as the fencing covenant is then binding on subsequent owners of the property sold. The benefit of the fencing covenant does not generally pass to a new owner if the original vendor sells his or her land. Also the Fencing Act provides that a fencing covenant expires 12 years after the registration of the covenant. Agreements between owners as to the fencing of a common boundary can also be registered on the titles.
A boundary fence will need to meet any conditions in the Local Authority District Plan which generally specifies at least a maximum height for an urban fence.
The above comments are of necessity general in nature. If you have any particular issue with fencing our property law team will be happy to advise on your situation.