Fencing issue - neighbour dismantled fence without notice

[markstewie]

On Sunday morning our neighbour pulled down our shared fence which covers half our rear boundary without notice.

The history:

- About a month or so ago the neighbour approached us and asked if he would allow us to do a survey of his property. We agreed that he could dismantle a small portion of fence to allow access to his surveyors as long as the fence was rectified to it's current condition asap following the survey as we have a dog and a child to contain and value our privacy.
- We have owned our house for just over three years, and as a side note several neighbours have alerted us to the fact this guy is very peculiar and previously harassed the elderly owners of our house prior to us. We have not had any contact with him prior to this.
- The survey was completed weeks ago but the fence never was repaired.
- We are aware from our own independent survey that the fence in question lies approximately 30cm on his property which he was aware of too and it was our understanding he was completing the survey as his intention is to sell (thank god!). The fence was in this position when we bought the property.

- About two weeks ago we asked what his intentions with the fence/survey was via email because we had heard nothing following the survey.
- On Friday we asked what his intentions are with the fence (again) and we still heard nothing back.
- We are currently doing landscaping so need to know what is happening so we can complete our landscaping work.
- On Sunday morning he has started ripping down the fence without our permission. We asked him to stop verbally, he did not and has now dismantled the fence with the exception of the posts.
- Initially, he totally ignored us trying to talk to him on as he had earmuffs on and continued to use the hammer to pull the fence apart while we were trying to get him to stop.
- I pulled the hammer from his hands as he wasn't stopping and was totally ignoring us. He subsequently went inside and called the cops on me for assault...
- The cops turned up and while I don't think anything will come of the assault charge as it's clearly ridiculous the cops did play mediator and we agreed that we had no issue in moving the fence to the correct boundary position and never did but as no notice was served we wouldn't be contributing to the cost and we need it re-established as soon as possible for privacy and security and to complete our landscaping works.
- If he served us notice that he wanted to move the fence to the correct boundary, we understand the fencing act law and would have complied with his notice and contributed to a new fence. However he never served us notice.
- Since ripping the fence down, there has been no sign of him attempting to rectify the fence.
- We have no idea of his intentions with the re-construction of the fence. It is likely that he will leave it like it is for a long time. We would like to get it re-established asap as we are currently doing landscaping and have dog/child to contain plus now our bedroom + kitchen looks straight into the back of his house. We will establish a temp fence but we want our privacy back.

Questions:

- As we were never served notice, am I correct in assuming we have no obligation to contribute to a new fence?
- What are our options going forward? Do we have any grounds or means to force him to re-establish the fence?
- Could we take him to the disputes tribunal to force him to re-establish the fence at his cost by a certain time?

[artemis]

If the fence was on his property, he can do what he likes with it. As there is no boundary fence, your recourse is to get some quotes for a new boundary fence and serve him with a fencing notice.

[markstewie]

Thanks for the reply. My understanding is that it doesn't matter if it was slightly on his land as under the fencing act a fence is a fence. If he had served us notice that he wanted to put the fence in the right place we obviously wouldn't have been able to object and be liable for half the cost. But the point is, we never had any notice of his fencing works. Even on the Citizens Advice Bureau website under Fences & Boundaries section website it says when a neighbour begins building work without notice...

"Under the Fencing Act, your neighbour is required to give you notice before starting work on the fence - unless the fence has to be repaired urgently and you are not available to be notified. If you did not receive any notice then you can refuse to pay towards the cost of the fence."

Are you saying the fencing act doesn't apply just because the fence was slightly on his land? I would not think this is the case.

[Wayne]

- As we were never served notice, am I correct in assuming we have no obligation to contribute to a new fence?
- What are our options going forward? Do we have any grounds or means to force him to re-establish the fence?
- Could we take him to the disputes tribunal to force him to re-establish the fence at his cost by a certain time?

1/ - the fence was his I suppose. He has removed his stuff from his section. If he serves a notice you would probably have to contribute - the real boundary fence never existed.
2/ you could issue a fencing notice then the fence would be re-established - on the boundary
3/ probably not - not at his cost.

[markstewie]

Really appreciate the reply.

I don't agree with this stance though.

In the fencing act 1978, interpretation section it states...

Adjoining occupiers means the occupiers of the lands on either side of a common boundary or a common fence.
Fence means a fence, whether or not continuous or extending along the whole boundary separating the lands of adjoining occupiers;

Yes the fence was on his land, but under the fencing act a fence simply has to "seperate the lands of adjoining occupiers". It says nothing about having to be directly on the boundary. Therefore the rules in the Fencing Act apply here.

Then in section 10 (4)a it states that occupiers of adjoining land will not be liable to contribute if any part of the work on a fence that is done before notice relating to the work has been duly served on him:

Please let me know how I'm mis-interpreting this?

[Wayne]

Really appreciate the reply.

I don't agree with this stance though.

In the fencing act 1978, interpretation section it states...

Adjoining occupiers means the occupiers of the lands on either side of a common boundary or a common fence.
Fence means a fence, whether or not continuous or extending along the whole boundary separating the lands of adjoining occupiers;

Yes the fence was on his land, but under the fencing act a fence simply has to "seperate the lands of adjoining occupiers". It says nothing about having to be directly on the boundary. Therefore the rules in the Fencing Act apply here.

Then in section 10 (4)a it states that occupiers of adjoining land will not be liable to contribute if any part of the work on a fence that is done before notice relating to the work has been duly served on him:

Please let me know how I'm mis-interpreting this?

By that reconing if I was to build a fence (there was nothing there before) say 1m inside the boundary to keep the dog in that would become the boundary fence rather than a landscaping feature of my own.
I then couldn't remove it when the dog died as it was then covered by the fencing act.
Seems like a bit of an intrusion into what I can do with my land.

[Learning]

Yes the fence was on his land, but under the fencing act a fence simply has to "seperate the lands of adjoining occupiers".

Your neighbor's argument could be that it was his fence and there is not, and never has been any boundary fence separating your land and the thin strip of his land behind his recently removed fence.

[artemis]

Suspect you are overthinking this. The fence was on neighbour's land, and is now gone. You are not going to get anywhere by trying to show it was actually a boundary fence. Well you could issue a fencing notice to replace or repair and go though the process in the Fencing Act. Good chance you would lose IMO.

If you want a boundary fence, then you can take control and issue a fencing notice. If you do nothing, you might have no fence or be on on the other end of a fencing notice.

[markstewie]

If you want a boundary fence, then you can take control and issue a fencing notice. If you do nothing, you might have no fence or be on on the other end of a fencing notice.

Yep, that's exactly what we've decided. Got a quote for a new fence, going to put together and issue a fencing notice to him tonight and see what happens. Thanks for the feedback

[mrsaneperson]

For whatever reason he has become uncommunicative. Both parties have established that the fence was in the wrong place to his detriment.

30CM is actually a big displacement with today's crazy land prices in Auckland. However this was something beyond your control and the fault onus is with the previous owner or whoever put the fence in the wrong position. I had a contractor ready to install a fence in the wrong position - 24cm on my side just two weeks back. Lucky i checked the progress of the job on the first day and noticed the posts displaced on my side. The reason he said was he did not want to disturb and partially destroy an existing concrete fence footing 14inches deep close to a retaining wall . He came up with an alternative solution bolting another post in front of his newly installed posts thereby resting the post on the existing concrete fence footing and placing the fence almost where it should be on the boundary line, although still a few Cm's on my side.

In another property fencing situation , neighbour A had told me verbally he would contribute as long as the other fence neighbour B was happy . Initially the other fence contributor B was not happy to be contributing but after some talk I got him onboard. I informed neighbour A of this new development who then said he now did not want to contribute as he thought the existing dilapidated fence was fine ,even though the fence construction was due in the next couple of days. The fence construction went ahead and I presented the apportioned bill to the neighbouring contributors. Received only one contribution - you can guess which one! I sent him another notice of payment due to which he replied that as I had not given him written notice he did not have to contribute. Some people will try anything. In the end I went round to see him personally and we agreed to disagree that he wasn't adequately informed but perhaps some miscommunication had taken place - he was Chinese - and he coughed up payment the next day. What a bloody hassle. In actuality I had 3 neighbour contributors in all to deal with as their was also neighbour C , who was fine with contributing but did not meet the deadline for payment, so I had to chase that up.

So I think you have done the right thing in issuing him with a notice in writing. I had also done this but I had not received written notification back; only a verbal go-ahead which then was reneged upon until I soothed the situation afterwards. The other thing you may have overlooked is that technically your neighbour can argue of a 50% contribution to a most basic minimum fence requirement at far less cost than the one you have presented the quotation for.

[Wayne]

I had a contractor ready to install a fence in the wrong position - 24cm on my side just two weeks back. Lucky i checked the progress of the job on the first day and noticed the posts displaced on my side. The reason he said was he did not want to disturb and partially destroy an existing concrete fence footing 14inches deep close to a retaining wall .

The fencer was being lazy.
Some time in the future someone may get upset about a fence I build.
Built is just my side of the boundary because I didn't want the pain of demolishing the existing poleite (sic) fence - probably contained asbestos!
So it is now 10cm out really.

But 30cm - too far.