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MARCH 2015

Neighbours at War

Disputes between neighbours can arise over a variety of issues and, ideally, you and your neighbour will be able to resolve any problem by discussing it together.

However, if necessary, the law may be able to help resolve the matter.  Unfortunately, and all too often, a neighbourly dispute escalates so as to result in serious offences being committed.

There is no better example of such escalation and the dire consequences for neighbours to a dispute than in the 2012 Court of Appeal case of R v Gould.  In this case Mr Somers, a 72 year old man, had been engaged in a long running dispute with his neighbour, Ms Gould, over excessive noise and loud music from her property.  Ms Gould, along with a Mr Robert, a Co-Defendant, armed with a car jack and disguised with a stocking over her head threw Mr Somers to the ground and hit him about the body resulting in injuries that included a broken right leg, a broken nose and bruising to his body.  Both Ms Gould and Mr Roberts were sentenced to imprisonment. This case highlights how getting pragmatic early advice on managing disputes between neighbours effectively is so important.

Fencing disputes

A poular misconception is that all landowners must share the costs equally when building a fence along a common boundary.  This is not an automatic requirement. The best way to fund construction of a fence is to build a fence by agreement with your neighbour and having a written equal sharing agreement.  Problems will occur when an equal sharing agreement isn’t detailed enough.

An alternative is to obtain a contribution from your adjoining neighbours by complying with the process set out in the Fencing Act 1978.  This Act prescribes the mechanisms for managing fencing disputes. Many home owners are often left disappointed because they have advanced fence construction and incurred considerable costs, but have not followed the correct process and therefore cannot force their neighbour to contribute towards the cost of the new fence.

The procedures to compel your neighbour to contribute to the cost of a fence bordering your adjoining properties are as follows:

  • Giving notice to your neighbour that work is being done but the notice must be served before any work is started and must specify (amongst other matters) the type of fence, an estimate of the cost of the work and the date for commencement of the work.
  • Upon receipt of such notice your neighbour has 21 days to object and to make a counter-proposal.  If no objection is received then the neighbour who received the notice is deemed to have accepted your proposal.
  • If your neighbour objects to the proposed work and serves a cross-notice during the 21 day period, then there is no automatic obligation on your neighbour to contribute to the cost of the works proposed.
  • If no agreement can be reached following receipt of the cross-notice then it becomes a matter for the Disputes Tribunal or the District Court (depending upon the cost of the proposed fence).

Another option is to avoid dealing with your neighbours by building a fence solely on your property and just inside your boundary.  If you adopt this approach then you will be unable to seek a contribution from your neighbours, but you can proceed with your proposed works immediately and without your neighbour’s approval.

Harassment

The Harassment Act 1997 provides a civil remedy to protect victims against harassment that otherwise falls outside the protection afforded by criminal law statutes.

Upon application made to it, the Court will make a Restraining Order if it is satisfied that there has been a pattern of behaviour on at least two separate occasions within a period of 12 months and the behaviour in question causes actual distress or threatens to cause distress to the victim and that a reasonable person in the circumstances of the victim would view it that way too.

Trespass

Trespass is covered under the Trespass Act 1980 and is defined as the unjustified direct interference with land in the possession of another.

If you wish to make a warning to someone who has trespassed on your land, you can issue a written Trespass Notice. A Trespass Notice is a notice to stay off property and has effect for two years. The consequences of breaching a Notice may include being arrested by the Police, prosecution under the Act and potential for a civil claim for the Tort of Trespass to land.

Conclusions

Neighbour disputes are difficult to resolve. Get advice from us at as earlier stage as possible. We can assist with drafting Notices and Court Applications, as required by you.