Fencing your property - Sharing the cost with your neighbour

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Fencing LawyerOkay, so you have just bought or built a house and your attention has turned to your fencing requirements. 
Obviously, any fence erected on a shared boundary will benefit both you and your neighbour.  As such, it is only fair that the cost of the fence should be shared by both parties and often neighbours can agree on these matters without further assistance.  But, what if you and your neighbour can’t agree?  Luckily, your legal rights and are set out in the Fencing Act 1978, which provides that neighbours must each pay half the cost of building an adequate fence.  All you have to do is follow the process set out below:

Obtain a Quote
Your neighbour is only liable for half the cost of an adequate fence which means one that is reasonably satisfactory for the purpose, in the circumstances.  You may, of course, agree on a better than adequate fence.  In any dispute over the standard of fencing, all the circumstances will be relevant, for example, the size of the properties (and whether they are urban or rural), the needs of each neighbour, any covenants attached to the properties that must be complied with and considerations such as how close the houses are to the boundary.

Once you decide what sort of fence you want the next step is to get a couple of quotes so that you can discuss this with your neighbour and attach the quote(s) to your fencing notice.  We would stress that it is always a good idea to discuss your plans with your neighbour in the first instance to try to reach an amicable agreement.

The Fencing Notice
Even if the neighbour has agreed, a fencing notice should then be handed to them (or be sent to them by registered post) and should include reference to:

    - the type of fence proposed
    - the boundary to be fenced
    - the estimate of cost
    - the details of how and when the work will be done

It should also be clear that your neighbour has 21 days to serve a ‘cross notice’ or they will be deemed to have accepted the terms in the fencing notice including the liability to pay the amount proposed.

21 Days
After 21 days, if you have received no cross notice in that time, you are free to erect the fence and require the payment from your neighbour, as per the terms of the fencing notice.  If your neighbour refuses to pay then you have recourse to the Disputes Tribunal (if the amount you are seeking is less than $15,000).

Cross Notice
If your neighbour does not agree with the terms of the fencing notice for some reason then they may issue a cross notice in response, within 21 days.  This must set out why they object and may contain a counter proposal.  If the parties cannot agree from here then you can access the Disputes Tribunal but, in the meantime, you should not proceed with the proposal in the original fencing notice (unless you have both agreed) because you will be unable to recover any of that expense.

Help with the Process
Schedule 1 of the Fencing Act provides a suggested form of fencing notice and cross notice to guide the process.  Schedule 2 provides examples of the types of fences which will be seen as adequate in both an urban and a rural setting. 

The Fencing Act helpfully sets out your rights and the process involved in fencing adjoining boundaries but if you require further assistance please contact
Carolyn Ranson, by phone on 837 6891 or email carolyn.ranson@smithpartners.co.nz