What Landlords Need to Know About Boundary Fences
As a landlord, maintaining good relationships with your tenants and neighbours is key to ensuring a happy living environment. However, issues such as property boundaries, especially concerning boundary fences, can sometimes lead to disputes. The example below serves as a reminder of how important it is to understand your rights and responsibilities under the Fencing Act 1978 when it comes to shared fences. If you’re a property owner, here’s what you need to know about dealing with fence-related conflicts.
A Dispute Over Boundary Fences
For example, a landlord faced an issue when a new boundary fence was erected between two properties. The original fence was damaged, tilting, and rotten, essentially unsafe and close to falling down. The landlord, acting in good faith, paid for the full cost of replacing the fence by hiring a contractor. However, the neighbour was upset about not being consulted beforehand and even threatened to take legal action. This raises the question: Do landlords need to consult their neighbours before replacing a shared boundary fence?
A Quick Overview of the Fencing Act 1978
The Fencing Act 1978 governs the relationship between neighbours when it comes to boundary fences in New Zealand. The Act lays out the rules regarding who is responsible for the cost of building, repairing, and maintaining shared fences. Generally, neighbours are expected to share the costs of building a “sufficient” fence. If you, as a landlord, need to replace a boundary fence that is in disrepair, your neighbour may be required to contribute to the cost. However, if there is a disagreement, the Fencing Act provides a formal process for resolving it.
Key Provisions of the Fencing Act 1978
Here’s a breakdown of how the Fencing Act works and what steps need to be taken:
- Notification: If you want to replace or repair a shared boundary fence, you must notify your neighbour in writing. This notice must contain sufficient details about the proposed work and must be served in accordance with Section 12 of the Act.
- 21-Day Response Period: After receiving the notice, your neighbour has 21 days to respond. They can either agree, oppose, or remain silent. If they do not respond within the 21-day period, it is assumed that they agree to the proposed work and any associated costs.
- Opposition: If your neighbour objects to the proposed work, they can issue a cross-notice. At this point, the work cannot proceed until both parties come to an agreement or a court order is obtained.
- Liability for Costs: If you carry out fencing work without following the proper process, your neighbour is not obliged to contribute to the cost of the work, unless the situation involves specific circumstances like accidental damage (which wouldn’t apply here).
The Dispute Situation
In the case of the dispute previously discussed, the existing boundary fence has deteriorated to the point of being unsafe and unsuitable, i.e., it is no longer an “adequate fence” under the Act. The Fencing Act allows you to request your neighbour’s contribution for the cost of a replacement fence. To do so, you would follow the formal notice procedure outlined in the Act.
Here’s how you can proceed:
- Issue a Notice: As the fence is not in good condition and you’ve already replaced it, issue a formal notice to your neighbour under the Fencing Act 1978.
- Potential Objections: Your neighbour might argue that the old fence was still adequate or that the fence is not properly aligned with the property boundary. However, these arguments will need to be addressed through the formal notice process, which might include dispute resolution if necessary.
- Make Sure the Process is Followed: It’s crucial that you follow the proper procedure under the Fencing Act. This includes ensuring the notice is served in writing and in accordance with Section 12 of the Act. Failure to do so could affect your ability to recover any contribution towards the cost of the fence.
What to Do if There’s Still Disagreement
If your neighbour refuses to contribute or there is no agreement on the fence replacement, you may need to take further action. Under Section 16 of the Fencing Act, if the situation involves an urgent need for repairs (such as in the case of accidental damage), you may be able to compel the neighbour to pay. However, in the case of gradual deterioration, this clause likely doesn’t apply. If informal negotiations don’t resolve the issue, legal action can be taken to have the dispute resolved in court. The court can order your neighbour to pay their fair share of the costs if they are found liable.
As a landlord, it’s important to be aware of your rights and obligations when it comes to boundary fences. The Fencing Act 1978 provides clear guidance on how costs should be shared and how to handle disputes. Always follow legal procedures when repairing or replacing shared fences, and maintain clear, written communication with your neighbours to avoid conflicts. If you face a similar situation, consider consulting a property lawyer to navigate the process and prevent costly legal issues. Properly handling boundary matters helps maintain good relationships with tenants and neighbours, ensuring your rental property runs smoothly.
