Who should pay for the damaged fence between my and my neighbour's properties?

Question Details: I read through the information on fencing at www.communitylaw.org.nz/community-law-manual/chapter-8-neighbour-disputes/fences/. How do I know if there is a convenant on a fence between my and my neighbour's property? All fences around us are on our boundary line. The fence of concern is 200 mm inside our boundary (as specified on plans). The fence has been gradually damaged by our neighbours' large retaining structures to house garden beds on their side. These structures lean on the fence and put pressure on it so now one portion of the fence has collapsed. Who should pay to fix the fence?

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Answers by Lawyers

Community Law Wellington & Hutt Valley

Your neighbour is likely to be legally required to pay for fixing the fence, as they are the “occupier” of the neighbouring property with the retaining structures that have damaged the fence.

The fence is likely to be covered by the Fencing Act 1978 (“the Act”). It will be covered if the position of the fence has been accepted as marking the boundary between your properties, even though it is 200 mm inside your boundary on plans.

When an occupier is liable for damage or destruction of a fence, they are liable for the whole cost of repairing the fence under the Act. This means that if your neighbour was responsible for the retaining structures, and the retaining structures were the cause of the damage, then you can ask them to pay for the whole cost of fixing the fence.

Given that part of the fence has collapsed, it may be in immediate need of work. In this situation, either you or your neighbour can carry out the necessary repairs without notice to the other. You could get the fence fixed and then require your neighbour to pay the cost of the repairs. However, in the interests of good neighbourly relations (and not having to try to collect a debt from your neighbour), it is probably better to approach the neighbour first to see if you can come to an agreement. If no agreement is reached and the neighbour refuses to pay for the cost of fixing the fence, then you could take the dispute to the Disputes Tribunal. You can find more information about how to take a claim to the Disputes Tribunal here: www.communitylaw.org.nz.

Covenants can be registered or unregistered. Unregistered covenants are agreements that operate between people rather than running with the land. It is unlikely that there is an unregistered covenant affecting the fence, given that you are unaware of any agreement with the neighbour. You can find out if there is a registered covenant on the title to your land, by going to www.linz.govt.nz. There is a small fee. A guaranteed search would be the safest type of search to ensure that the certificate of title you receive is accurate. However, you might simply want to approach your neighbour about the damage, without first doing a covenant search. The damage needs to be addressed, and the neighbours can tell you about a covenant if one exists.

Answered 24 Feb 2013. The IMPORTANT NOTICE below is part of this answer.

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