Encroachment costs and responsibiities

[gSA]

I've recently raised with my neighbour that their 10+ year old fence is 2 metres over the boundary on my section. The length of the fence is approx 60+ mtrs. I've owned the property 8+ years and they are long term owners. The issue has come up because of potential subdivision plan that make use of this encroached section.
I gave the neighbour some printed plans etc etc making it very clear where the boundary should be and where the fence is.

The response is that they agree it looks like it's not on the boundary. They've approached their solicitor and are requesting a survey report.
I've enquired about surveying and been quoted 3 options which range from $2K-$3.5K.

I accept that no-one is going to just move a fence and give up such a substantial strip of land without prove but my query is this:
1) Is the survey report cost my responsibility? Can I claim anything toward the costs from them? It seems ridiculous I'm out of pocket because they built a fence off the boundary line.
2) Given they are encroaching, if I remove the fence after proving it is my land, does the fencing act insist they pay for a full rebuild?
3) The survey options I've had are for boundary markers (cheapest), markers + plan (mid), and full survey lodged with LINZ (Expensive). Do I get to dictate which option or now that their solicitor has asked for a 'report' am I forced to go the expensive route?

If I was rude i'd simply cut down the fence that exists and ask them to prove it was on the boundary. Right now it's not neighbours at war, I'm just a bit concerned this could put me out of pocket.

[motivated]

If its actually where you believe it to be (2m onto your land), it is not a boundary fence-- there is no boundary fence--it is simply a fence on your land which was there when you bought the property and both parties will be (under fencing laws) pay half each of a boundary fence
Neighbourhood politics aside -- the exising fence is a structure on your land and its yours to do what you want to with it-- I dont recommend removing it until/unless you have satisfactorily addressed the matter with your neighbour
You need to know the facts before you do anything
Surveyors also now have GPS devices which give reasonably accurate location--but possibly not accurate enough for Linz--Maybe you could get the location of the legal boundary
and existing fence established by this means so you can talk facts to your neighbour
If you find that the fence is fairly close to but not exactly on the boundary it is a completely different scenario from what i have outlined --In this second scenario it is likely to be deemed a boundary fence

[gSA]

It sounds like for me to get something actioned and based on your comment "You need to know the facts before you do anything" - I'm going to need to fork out some $$$ to get the correct boundary marked.
If in fact I'm going to have to pay half the build of a boundary fence there's no reason for me to go the expensive survey route and LINZ. I can just get the cheaper survey where they will place pegs down the correct boundary and we can share in the costs of a build. I was inclined to go the expensive survey simply to argue they should cover full expense to build the fence.
The fence is definitely 2mtrs onto my section. I've looked at site plans from LINZ and geographical features.

[motivated]

Sounds to me that you are taking a sound and sensible approach to the situation. Talk to your neighbours about the new fence in the first instance rather than pushing the fencing act in their face. Use that in due course if a reasonable greement is not forthcoming

[klauster]

Approaching neighbours you need to prove your points.
If the fence is on your land, you just own the structure. If both neithbours agree about a boundary fence, the fencing act applies with an enforceable share of 50% of the setup costs.

If your neighbour is not cooperative I would try to recover some costs because of using your land. Councils charge for encroachment land as well.

In a similar setting, I built the fence and the other party agreed to share related costs by 50%. Good luck

[Tjc]

Is that price range you mentioned for the peg option also? That seems excessively expensive for what I imagine would involve walking around with a gps and marking the boundary corners? Or do they actually go around marking the entire section edges?

[artemis]

I think there is provision in the fencing act for parties to agree on where the boundary is. It is possible this was done before OP purchased, so worth enquiring. Perhaps from the previous owner? Don't want to be blindsided if the current neighbour produces an agreement. There probably is no agreement but you never know.

I would put in writing to the neighbour that you propose to go the boundary markers route, ask them to share the cost 50:50 and give them a time frame to respond. Leave it to them to consult their solicitor. It would be preferable to have the surveyor produce some sort of report with a bit of technical surveyor stuff to meet the solicitor's request for a report, though I imagine that would be standard surveyor practice anyway.

Since the neighbours have gone the legal route, strongly suggest everything happens in writing now. Agree with 'motivated' not to talk Fencing Act at this point but their solicitor will know (and advise them) that a fencing notice is likely coming their way. The fence is long so not cheap to replace, and there is also the cost of the survey so the neighbours may well resist paying and force the fencing notice / Disputes Tribunal path. Best to be prepared by documenting carefully and hope it is not needed.

I guess OP would have to bear the cost of removing the existing fence if it is shown to be on their property, but maybe some materials are reusable.

[jappronz]

If you are looking at subdividing you would need a full survey/topos as a first step anyway...

[Connor]

If you are looking at subdividing you would need a full survey/topos as a first step anyway...

This. And don't be too hasty about angering your neighbour. You might still need them for something during the subdivision. Do you have all the services? It would be ashame to anger them and then later fine out the stormwater is on their property.

[gSA]

As they explained to me this is just for the one boundary line on that side of the property - assuming the pegs are long gone etc. Seems expensive to me too.

[gSA]

Thanks for all the feedback people. Part of the biggest issue is the neighbour has asked that I deal with another family member that is not in the suburb.
I've decide:
I'll pay for the survey pegs for that side of the boundary and plan. This info will be passed to the neighbour.
I'll then work with them on how we 'move' or rebuild a fence on the actual boundary. I don't see this being an issue - I just hadn't expected to have to pay 50% to build a fence.
As soon as the pegs are in and i've passed the survey plan to the neighbour i'll be ripping down the old fence - should encourage both of us to get the new one up asap.

[klauster]

I always amazed when people start talking about cost and lawyers before a problem has been identified.


Assuming a fence is in the best interest of both parties, keeping costs reasonable and maintain good neighbourhood. In this case in an initial talk I always find out whether the neighbour prefers a mutual agreement documented between parties, working together guided by the fencing act or taking a negative response as starting point for the legal route.


Example, I saved in this way huge bills for my neighbour, and we have been good friends since, talking and visiting us regularly for more than 15 years.

[artemis]

I always amazed when people start talking about cost and lawyers before a problem has been identified...... .

In this case the neighbour initiated the legal route. That is an indication that the lawyer may continue to be involved, so IMO it is a good idea to keep things on a more formal footing, even if that is a discussion followed by a written summary.

You may have had a good experience with a neighbour, but that is by no means universal. My lawyer has drummed into me that contracts should always be drawn and managed as if they are going to be used in anger, which is good advice.

[jappronz]

I'll pay for the survey pegs for that side of the boundary and plan. This info will be passed to the neighbour.

Why would you have them just do the side????!!!!! your going to be paying to have surveyors visit your property twice, refer my earlier comment. a new fence is a pittance in the grand scheme of a subdivision.

[motivated]

Just a little bit of info on surveying--- If a slightly less accurate result is ok a GPS survey can be used in some situations
--- The traditional theodolite system uses triangulation from known existing reference points --such as trig stations or other known markers. Often some distance away from where they are to place survey pegs. The surveyor often has a lot of work to do using the known markers to get a precise fixes for where the survey work is required. Somtimes this can mean the surveyor is working a significant distance away from a clients property---Depends where the reference points are
Surveyors often set up temporary reference markers near where the work is to be done so they dont need to go back to the original known markers each time the revisit a property
If the work is for a new boundary(ies) there will also be a lot of paperwork to be done by the surveyor for Linz