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PLEASE NOTE: This article was published on the date listed below and may now contain information that has since been updated or changed. We have retained this article as it may still contain helpful comments. However, we advise you to make an appointment to see us for the most up to date information on this topic.

March 2002

Neighbours And The Issue Of Fencing

Fencing is often the subject of dispute between adjoining property owners. Two issues that commonly arise are:

1. Whether or not there is a legal obligation to fence.

2. Whether or not occupiers are liable to contribute to the cost of fences erected by their neighbours.

Obligation to Fence

An occupier of land is under no general duty to fence his or her land from a neighbouring property or from public access ways. A duty to fence may arise from the use of the land, for example, if the absence of fencing may cause a nuisance to neighbours or the public. Adequate fencing is required on farms to prevent stock wandering.

Fencing is also required around swimming pools. The rules set out below do not apply to swimming pool fences.

Placement of Fences

The middle of the fence must be on the boundary line, except where a fence is supported by posts. Then the posts must be placed on the boundary line or as near to it as practicable.

Liability to Contribute to the Cost of Fencing

Neighbours may be obliged to contribute up to half of the cost of the fence bordering their property, providing the landowner wishing to build the fence follows certain procedures set out in the Fencing Act.

Procedures

If you want a neighbour to contribute to the cost of a fence, you must serve a notice on the neighbour setting out:

1. The boundary along which the work is to be done.

2. The nature of the work proposed and the materials to be used.

3. The consequences of failure to comply with the notice.

A neighbour who objects to proposals set out in a notice may, within 21 days after receiving the notice, serve on you a cross-notice. The cross-notice must set out any objections and counterproposals. Any work proposed in a cross-notice must be specified the same way as is required in the original notice.

If a cross-notice is not served within the 21-day period, the neighbour is deemed to have accepted the proposals in the original notice.

Failure to Agree

If an agreement cannot be reached within 21 days after the date of service of the last notice or cross-notice, the matters in dispute may be determined by a District Court or Disputes Tribunal.

When to Proceed

Where a person serves a notice under the Act in respect of work on a fence, he or she may proceed to do the work:

a. After the expiration of 21 days from the date of the service of notice if he or she is not served with a cross-notice; or

b. If he or she is served with a cross-notice, as soon as all the differences between the parties are resolved either by agreement or by the court.

If the work is done prematurely, the neighbour is not liable to contribute any costs incurred erecting the fence.

Contribution Where Immediate Work is Required

If any fence is damaged or destroyed by sudden accident or other cause and requires immediate work, either of the adjoining occupiers may do that work without any notice, and may recover half the cost thereof from the other occupier. This rule does not apply where the destruction of the fence is the fault of one of the occupiers, in which case, that occupier will be liable for the full cost of the work.

If you have any doubts contact us first.