Boundary encroachment and fencing stress

[kayeve]

Hello, I am new to the forum and hope someone can please help! Thank you so much.

We have purchased a property last year that was subdivided in the mid 90s. The driveway is owned by our neighbour on the back with us having an easement over it. This very driveway extends 60cm onto our property, confirmed by a surveyor and the boundary pegs. The land on the other side of the driveway encroaches onto the neighbours land though by 30cm - something that hasn't been addressed over the decade that they have owned the property.

When we bought the property, we made a letter from the property owner at the back agreeing to us building a fence along the driveway part of our purchase agreement. Our lawyer considered a letter adequate that said that the owner is "fine with us building the fence as long as she can still receive deliveries and access her property." He said that we have the right to build a fence on our boundary. The new fence makes the driveway under 3 meters wide - we have staked this out so everyone could test drive it. Everyone, neighbour at the back, their visitors and ourselves, including big 4WDs are getting through fine. A ring to the council confirmed that there is no minimum driveway width in the district plan.

When we moved in and had a first attempt at a discussion with the neighbour they didn't sound so reasonable as in that letter and questions were asked along the lines of "why do you even need a fence?". Things deteriorated from here. We have tried to communicate and stay polite even though we have encountered hostility.

We now want to begin building the first part of the fence - an L shaped noise protection fence to mitigate road noise from the front of the section. Up to 12 meters of that will be along the front of the driveway. We are planning on putting it fully on our side of the boundary, and pay for it ourselves. I have delivered a letter in person recently (It feels ridiculous to send it by registered mail when they live next door!) explaining that fact and the design and was told to "p*$$ off" after handing them the letter.

Are we being unreasonable? It is a small section, hence we are not willing to give up land that is legally ours.

And most importantly: What can the neighbour actually do when we build a fence on our side of the boundary? It will not obstruct their view and we know they are capable of using the driveway. Can they get a court order to have us a remove a fence on our side of the boundary with this in mind?

Thank you so much for any help!!!

[donna]

Agree if you're building the fence on your side of the boundary - i.e. your land not cross-leased land with the property in question then you're good to go (my point of view). You could in fact take your 60 cm back not that you would however you could build the fence hard up against the drive as it would still be on your land.

There is however, the neighbour to consider - so what you build should not restrict the use of driveway and that it can be used safely etc.

cheers,

Donna

[kayeve]

Thank you so much Donna! We are planning on taking the 60cm back, and build against our actual boundary. Two weeks ago, we have put removable stakes along the driveway on the actual boundary including those 60cms, and everyone has been fine driving through during this time. I think that's evidence that it's not a restricting or obstructing driveway use?

Very tricky!! Cheers
Kaja

[donna]

Umm however the driving experience will be different when there's a fence there esp. if it's a solid fence (no gaps, not see-through). Good idea to build the actual fence on your side of the boundary as you say earlier on.

cheers,

Donna

[Viking]

They are telling you to P*** off because they don't want to pay you any money. Shared boundaries usually mean shared fencing expenses.
There is little they can do if you reclaim you land as it is yours.
They may not like it but its yours and if I read it right you have an easement entitlement which they cannot interfere with. (theoretically).

there are rules around fencing and if you look up Citizens Advice they have it on their website.

[kayeve]

Thank you Donna and Viking!

Your point about the visibility once there is a fence was so helpful Donna. We might widen the fence towards the road / have a 45 degree angle so that getting in and out of the road is easier.

And pretty sure you're right on the money Viking, of course other people's bank accounts could contain anything but I think the $$$ for fencing might be an issue for the neighbours.

In the NZ property law act 2007, section 321 onwards talks about "Wrongly placed structures." Would anyone know if this could be applied against us with the new fence?

Thank you so much!

[ChiefWigum]

It amazes me that people think an existing fence or driveway MUST mark the official boundary! Especially when it benefits them! I've personally been through these scenarios before. Your neighbour has had it easy these past years.

As expensive as it is, getting a surveyor in and marking the legal boundary was the best thing you've done. Take photos of them in place - some dodgy neighbours will rip them out (illegal by the way).

Normally both property owners are liable for a standard paling fence. But with an easement, often the easements attached to your title (these can be downloaded for about $10-20 each) state who is responsible for paying for a fence on the row. These are written in legalese that can be damn hard to understand! With all my easements it states that only one party is liable for the fence costs. Otherwise it's probably down to the Fencing Act 1978.

http://www.legislation.govt.nz/act/public/1978/0050/latest/DLM21807.html

This is written in plain English so no lawyers need be involved. It's only a few pages long.

But not being on talking terms you'd have to do this as per the Act step by step (present quotes, wait, more quotes, wait, no agreement, present them with a 'fencing notice', wait, disputes tribunal, win the case, build the fence, seek pmt, wait wait wait, court order for pmt as they won't pay, wait etc etc and the game goes on).

However, if it was me, I would build your custom designed fence (as per Council plan/regs) at your own expense, 1mm onto your property just off the boundary with the drive. You will gain 59mm of section that is yours, has always been yours which your neighbour naively thought was theirs all these years. You pay rates for that land too btw.

The key is communication with your neighbour. Appreciate they are getting quite rude. Just keep them informed each step of the way, make sure they know that you've had it surveyed and will be building a fence just onto your property at your expense and that you've taken advice on the matter.

I know it's not nice living next to such people, but it's YOUR land, not theirs. A two feet strip is actually quite a bit. Keep your head high.

[donna]

Yes and it doesn't get any easier when your neighbour is the Government (local) we've found. We ended up going ahead and paying for a fence - when they weren't going to contribute.

cheers,

Donna

[ChiefWigum]

599mm of extra property is what I meant, not 59mm. Minus the width of your fence of course :-)

[kayeve]

Chief Wigum, thank you. "Keep you head high" is my message of the day. The sense of entitlement to someone else's property just baffles me!! If it was the other way round I'd be apologising and helping to sort out the situation. I might secretly be miffed for about 5 seconds and then hand the neighbour on the other side of the boundary a trespassing notice for the 30cm they are encroaching!!
I've read the fencing act a few times now . Your suggestion of building the fence on our 599mm of property is what we're going for. We have photos of the boundary pegs too - the neighbour actually talked to the surveyor while he was there, so no denying they know.

I'm sorry you've had several of these scenarios and very grateful for you sharing your advice!!

[ChiefWigum]

Not a problem. Do let us know how it goes. Just document and photograph everything. I keep a date/events log because it's easy to forget what happens, what was said etc and on what date. You might need to recall the info one day at the disputes tribunal. Hopefully not though.
Cheers.