Neighbourly Tensions: Battling it out Over the Fence!

Under MBIE Building Performance guidance, a building consent is usually not required for fences or hoardings up to 2.5 metres high, but pool fences are treated separately and district plans may still require resource consent for fences over certain heights, often over 2 metres. Covenants, heritage rules and local planning controls can also affect height, materials and colour.

Fencing Covenants and Agreements

A fencing covenant is an agreement between two parties where one party may not be required to contribute towards the costs of erecting a fence or the costs of any work to be carried out on a fence. If a fencing covenant is registered after 1 April 1979, it will expire automatically 12 years from the date it was registered. Subject to this, the burden of a registered fencing covenant will run with the land. The benefit of a fencing covenant will not bind any subsequent purchasers of the adjoining land (only bind the original parties). It is common for developers to register these, to avoid being liable for fencing costs when they sell lots once titles have issued and they may remain an owner of some adjoining lots in the subdivision.

A fencing agreement is similar to a covenant except it allows the benefit of the agreement to run with the land and be passed on to any subsequent owners.

What If There's No Valid Fencing Covenant or Agreement?

Section 9 of the Fencing Act 1978 sets the general rule that adjoining occupiers share the cost of work on an adequate boundary fence in equal proportions, subject to the Act and any court order. The Act also covers situations such as damage caused by one occupier, fencing notices, cross-notices and the timeframes for responding.

NZ Government guidance says the first step is to talk to the neighbour who shares the boundary and try to agree on the fence height, materials and cost before using the Fencing Act notice process or taking a dispute further.

What is an "Adequate Fence"?

An "adequate fence" is not necessarily the type of fence you may have in mind. Depending on the area or land, a high-security, modern fence that you may be after may not be considered reasonable. For example, in a rural setting just a hedge or farming fencing may be considered as adequate.

The Fencing Notice Process

The Act sets out a specific notice process for an occupier who wants a neighbour to contribute to fencing work. Because notices affect legal rights and cost liability, use the statutory form or a notice to like effect and check official guidance or legal help if the boundary, title or wording is unclear.

If your neighbour does not agree with what is proposed in the notice, an objection can be made within 21 days by serving a cross-notice. Your neighbour may propose a different approach in their cross-notice. By way of an example, they may think that the existing fence is adequate or that the proposed new fence is too expensive. Notices should not be ignored.

If you and your neighbour cannot agree, the dispute may be taken to the Disputes Tribunal or District Court depending on the issue. Under current section 24A of the Fencing Act, the Disputes Tribunal cannot make fencing orders or judgments above $60,000.

When Your Neighbour Won't Have to Contribute

Your neighbour will not be required to contribute to the costs of erecting or carrying out work on a fence where:

The above gives you a snapshot of the ins and outs of the law around fences. Just remember, communication is key to keeping the peace in the neighbourhood.