Q: If you are paying for a new boundary fence, do you need to consult the neighbour? The fence was damaged, tilting, rotten and about to fall down. We paid the full price for a new fence built by a contractor. The neighbour is upset he wasn’t consulted and says he is taking action. Can he do this?

A: The Fencing Act 1978 sets out rules and obligations for situations involving shared boundary fences. Generally, neighbours are required to share the costs of building a ‘sufficient fence’. Where neighbours are unable to reach an agreement on work on a shared fence, one occupier may seek to compel the other to contribute to the shared cost of work by initiating the act’s formal notice process.

Under this process, the occupier wishing to carry out fencing work must give notice, containing sufficient detail, to the adjoining occupier. The adjoining occupier is entitled to 21 days to respond with opposition to the proposed work in the form of a cross-notice. If no response is given within the 21 days, the adjoining occupier is assumed to have agreed to the work, and it may start.

If a cross-notice is served an occupier should not proceed with the work unless agreement is reached between the adjoining occupiers or by the court. Where an occupier has conducted work on a fence without an adjoining occupier’s permission or without following the formal process set out in the act, the adjoining occupier is not liable to contribute to the cost of the work, except in the circumstances set out below.

In your situation it seems there was an existing boundary fence, but it had reached a point where it was no longer fit for purpose. In the words of the act, your two properties are not divided by an ‘adequate fence’. If the fence is not adequate, then you can very likely force a contribution to the cost of replacement. You would do this by using the notice procedure in the act (see s10 and s1 and 2).

What we would recommend is issuing a notice under the Fencing Act 1976 to your neighbour. They have the ability to oppose any contribution to the cost of a new fence, but that would likely be on the grounds that the fence is either not on the boundary or that the existing fence is actually adequate.

You need to make sure your notices are completed properly and served on your neighbour in accordance with s12 of the act. Another legal mechanism to compel contribution to the cost of a replacement is under s16 of the act in the case of sudden accident or other cause that requires immediate work.

But this does not seem like it would fit with your current situation. That’s because there has been no sudden or accidental loss, but rather slow degradation. Beyond these legal remedies you can, of course, simply come to an agreement with your neighbour. If you do so such an agreement is binding notwithstanding anything in the act (see s4 of the act).

Shane Campbell

wynnwilliams.co.nz