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  1. #1

    Default Gnarly Issue - Fencing of Dual (Contested) Right of Ways...

    Hello All,

    I'm truly struggling to figure out how to deal with this situation.

    We live in an Auckland property that has a Right of Way around two boundaries - down one side and across the back. It provides access for one neighbour (the property at the back and over one). Let's call him Joe. RoWs created in 1980's due to roadway realignment / motorway on/off ramp reserve. So, there are us and Joe who have rights in that RoW. We get along ok. Just.

    Beside (beyond) our Row is a second RoW. That RoW has three parties. A neighbour to that side, the neighbour to our rear, and the Auckland Council, with land (a Flood Path / Drainage area) behind all of us.

    The neighbour to our rear, on the second RoW, comes from another country, though they claim to have been here over 20 years. Long enough to learn about NZ Culture and Law, one might think.

    Actually, they are The Neighbours from Hell (TNFH). The country they come from has a history of war, and they seem to have brought it all with them. They are extremely aggressive, with a clear "expansionist" and covetous mindset.

    They simply do not care about other people's rights. For years, they have treated the neighbour's property as if they own it. For years, they have parked their cars on the back of their property every night, simply because it was convenient for them.

    Meanwhile, TNFH have rebuilt their boundary fence with the Council land, encroaching about a metre onto it.

    The neighbours beside us over the RoWs are lovely people, but they are tenants and don't want to create any trouble, so they have tolerated it. They complained to their landlord who came around and made a few feeble noises, but he has long term plans to subdivide and redevelop, so he doesn't want to cause any upset either, in case TNFH block his proposal. So, TNFH continue parking their cars on the tenants property. It's unfortunate that people let them get away with these things, and the law is no help.

    Not content with taking over council land and the neighbours to one side, they have now started on us.

    Actually, that's a bit out of sequence: they started on our property before we bought it over 5 years ago. Our tenants when we bought informed us that TNFH had stolen a substantial part of the low, wire netting fence that divided the two RoWs, probably while the house was on the market. It now "graces" the top of their boundary fence with Council, behind which, they kept chickens. (Like they did back home, I guess.) Also wanting to be good neighbours, we never pursued that at the time, and it may have been before we took ownership anyway.

    Our RoW is substantial, is wider than average, and fully concreted, well able to withstand trucks. It goes directly past our house, a metre away.

    Their RoW is narrower, and only concreted over the first third. The rear part, up to their property, is gravel. Clearer, this is "inferior" and our "RoW" is much nicer....

    I'm sure you can all see where this is headed.

    Yep, the problem is that their RoW connects to the side of their property, effectively running across what used to be part of the neighbours property, then turning into the near corner of their property.

    On the other hand, our RoW runs along the side of our property in direct alignment with the near corner of their property. You could drive straight in, if it was your RoW... That access was previously fenced, with a large hedge and the remains of an old post & wire fence inside it - that is, until one Sunday morning when a digger unexpectedly started working out the back. It was ripping out this hedge, without our consent or permission.

    A minor altercation ensued when I tried to approach the head NFH to discuss it. He told me he had spoken with the other neighbour and he had agreed so I could F**k Off.

    I took photos and made notes...

    A month later, they had put down boxing and a concrete truck rolled up one Tuesday morning to pour concrete.

    Again, I approached TNFH to ask what he was doing about replacing the fence he had removed, since there were no posts or any other preparations for a new fence. I asked about what fence he was installing, was told "an aluminium one" and was threatened with a Boxing Stake or similar lump of wood. Of course, I retreated to call the Police. Later, I was also advised by him that "[His] Nail Gun might 'accidentally' fire in [my] direction."

    In fact, when the concrete was finished, they had made clear, special efforts, including smoothing the gradient up in front of their garage and down again, so that their concrete exactly met the same level as the surface of our RoW.

    The Police arrived a few hours later, by which time I had trespassed him. But he still made a point of driving his 4x4 into our driveway and revving it up to prove he's a right jerk.

    The next day, a large section of trellis appeared over the hole where the hedge had been, and it has been there almost a year. Originally, I took this as a sign he had spoken to his lawyer, but now it appears otherwise.

    After another incident the weekend before last, the trellis was removed. Again, there was some discussion, but unfortunately, this was interrupted by our neighbour Joe down our RoW who "laid down the law" and let TNFH prevail. Prior to that, TNFH had threatened to take me to Court. Told him I'd love it!

    I'm sure I can take him (TNFH) to Court and get him forced to replace that fence. I have drawn up a Fencing Notice to that effect, but I expect he will ignore it. I have written it such that he has to use an independent fencing contractor and pay for it all, as he should do under the law, but as you can see, he's above the law.

    It's very clear that he (or, more, his wife) plans to start using our RoW just like they use everything else around here. There's a clear pattern of slow attrition and gradual encroachment, but the Trespass Notice has another year or so to run. Not sure how they plan to get around that, but I think I know.... All their friends will be instructed to use our RoW in the meantime.

    I'm happy to take that to Court, soon, before he gets too settled in his notion that he had just made another "advance."

    However, the real problem is the main fence along the rest of the RoW. After this latest, we have had a complete gutsful of this prat, and want to completely fence him out of our lives.

    I would build a fence myself.

    The problem is, we don't own the land immediately on either side of the boundary between the two RoWs.

    Joe, the other party to our RoW owns the 1.6m wide strip of land between our land and the other RoW. TNsFH own the strip immediately inside the second RoW.

    I don't think it matters, until I come to try to fence it! I doubt that I would be allowed to get even one new post in. The big issue there is that now, Joe and TNFH have become friendly, and trade work with one another... That's the big fly in the ointment. And the Council "doesn't want to know." They don't even seem to care about the encroachment onto their own land, the realignment of the gate, or the obstruction to their access.

    We just want a decent fence put back up.

    I have searched but cannot find any legal precedent for this scenario, of a fence between two shared RoWs.

    Does anyone have any knowledge / experience / suggestions?

  2. #2
    Join Date
    Oct 2008
    Location
    Auckland/Melbourne/ whereever the money is
    Posts
    1,323

    Default

    You are entitled to put a fence on your own property as long as it stays on your side of the boundary.
    By the sound of it, getting any money out of the guy for a common boundary fence is going to be difficult, so if you really want a fence there then put up whatever you want and stay on your side of the boundary.
    on re-reading your post I note that you don't actually own the boundary, but perhaps you could try putting in some temporary fencing such as used on building sites(warratta posts with nylon / plastic fencing) & see what the response is.
    Last edited by Keithw; 23-08-2017 at 06:30 PM.

  3. #3
    Join Date
    May 2004
    Posts
    2,195

    Default

    Something similar was discussed recently on the TradeMe message board. Might be helpful

    http://www.trademe.co.nz/Community/M...10986&topic=21

  4. #4
    Join Date
    Jul 2012
    Posts
    41

    Default

    Hi,

    I am busy for the next couple of weeks but could probably offer some excellent layman's advice on your scenario after that. The big thing for you is to work within the law and don't do anything that he could legally counter claim against you for. Disputes tribunals are cheap, less than $100 and adjucators take a dim view of people abusing ones property rights. Any trees that formed a living fence on a boundary would require consent of both neighbours before removal and the other party would be liable for all costs in replacing this. If he is encroaching on council land he is encroaching on my land as a ratepayer and I would be concerned if a council was not concerned. The council has to pay towards fencing on boundaries, they would not be exempt from the act. If he is laying a concrete drive on a shared driveway I hope it is 150mm thick as that is Auckland Councils requirements, so if he is not he is not properly maintain the shared driveway. This would include making sure any water runoff from his drive does not go over your land which would also be illegal.



    You can not put a fence down the centre of a shared driveway or encroach it in any way. This includes constant parking in it and if someone is constantly parking in a shared driveway the disputes tribunal would most likely fine them (that money goes to you). You cant even put an unlocked gate on your side of the shared driveway as this would be viewed as a nuisance.

    If you did serve a fencing notice on your neighbours about removing a common fence don't be put off if you think they wont pay. Get the sealed judgement then if they wont pay place the debt with a collection agency. It would be there credit rating that is affected. Its all about getting the legal system to work for you.

    Trespassing on a common right of way would not be mean anything if they have a legal right to use a right of way. If they don't have a legal right and they OR their friends use it I would lay a complaint with the police again for trespassing again. This would include them backing into your drive only a meter to intimidate, its still a trespass. Take lots of photos of everything they do. Set the date on your camera and keep a diary of all un neighbourly acts.

    I would even get a copy of his property bag and make sure everything he is doing is consented. I hope he hasn't added another toilet, removed a load bearing wall, built a garage, enclosed a carport or exceeded his site coverage for buildings. Remember he started the war, you are just going to finish it, but legally. I shall talk more in a few weeks time.

    Nan.

  5. #5
    Join Date
    Jun 2004
    Posts
    9,592

    Default

    Quote Originally Posted by Nan View Post
    I would even get a copy of his property bag and make sure everything he is doing is consented. I hope he hasn't added another toilet, removed a load bearing wall, built a garage, enclosed a carport or exceeded his site coverage for buildings. Remember he started the war, you are just going to finish it, but legally. I shall talk more in a few weeks time.
    Sheds against fences are another good one - not legal and everyone does it but only becomes an issue when you piss off the neighbour.

  6. #6

    Default

    Hi Keithw,

    Sorry my question was soooo long! Thanks for your reply.

    Quote Originally Posted by Keithw View Post
    ... on re-reading your post I note that you don't actually own the boundary,
    Yes, unfortunately, we don't own the land directly on either side of the central boundary line between the two RoWs.

    In fact, there are 5 parallel strips of land. Ours is on the Easternmost side, being part of our section. Ours and one other strip immediately beside us make up one RoW.

    On the other side, 3 strips form that RoW. If ours is strip #1, TNFH owns #3, the nearest to us on the other RoW.


    Quote Originally Posted by Keithw View Post
    but perhaps you could try putting in some temporary fencing such as used on building sites(warratta posts with nylon / plastic fencing) & see what the response is.
    Yes, I have thought of that and would REALLY like to, but I don't want to inflame the situation until I'm clear regarding our legal rights. Because I don't own any of the land nearest the fence, I don't think I can just go building a fence there. At least, not without the proper process.

    More to follow...

  7. #7

    Default

    Thanks artemis:

    (I can't post the quote, can't post links, even though deleted...)

    I've had a good look, but I'm more confused. Different people seem to have different ideas; not sure who is right.

    Regarding neighbours on both sides of a three strip RoW,

    hammer23 says: "... Mr. Right hand side would be targeted by his standalone neighbour and Mr. Lucky is legally excluded."
    I hope that is not correct, or we may be stuck with no new fence and a lunatic driving over our RoW at will.

  8. #8
    Join Date
    May 2004
    Posts
    2,195

    Default

    Agree the TradeMe thread is confusing, and also not legal advice of course. However, I think it covers many of the issues, and would be a useful list to take further advice on for your own situation.

  9. #9

    Default

    Quote Originally Posted by Wayne View Post
    Sheds against fences are another good one - not legal and everyone does it but only becomes an issue when you piss off the neighbour.
    Thanks Wayne (and Nan),

    Funny you should say that. He has a shed against the boundary, his garage is also against the same boundary. But in that case, I think it's allowed. The garage anyway, because I think it was there first, and the other half of our RoW (at 90 degrees to the half discussed above - the RoW goes down one side and across the back) runs along that boundary, so I think there's an exclusion permitted in that case.

    But, Yes, I got the Property File. There is nothing in it initiated by him. Only work done by the previous owner - an extension and a wood burning stove.

    However, he has converted his garage to some kind of accommodation and has tenants in it. Not sure about anything inside, whether there is a kitchen, shower or toilet - probably no toilet, and the kitchen appears to be in the kitset garden shed outside.

    As already mentioned, he has rebuilt his side fence encroaching on the adjacent Council land. But there was nothing about this in the Property File. Council says it would be in the LIM, but I'm not keen to spend $250 for that. Would rather spend it on the fence! In that respect, the Council is not helpful. I guess it's considered another "Privacy" issue, so I don't know if he's under a Removal Order or what, but I'm fairly sure he has had a visit from a Council Official, about his constructions. That might explain why he has not installed the rolling electric gate he has bought, across his official RoW entrance, because the encroaching wall it would adjoin might have to go.

    Further, as also mentioned, he has concreted his entire yard, and some of "his" RoW. Hard to say if he's gone over the site coverage limit, but does he need consent anyway?

    Did I already mention the three big ugly entrance pillars he has erected? One, approximately on his property in the corner nearest the RoWs, (roughly where the concrete strainer post he removed used to be) and two down the side, CLEARLY outside his section but on his RoW strip, being part of the RoW easement... In reality, these pillars significantly restrict his own access from his own RoW, reinforcing my view that his target is our RoW. And they illegally obstruct and encroach on the RoW which has further pissed off the other neighbour...

    So as you say, this guy sure knows how to piss off his neighbours. Dumbest part is, if he was nice to us, we would be nice to him, like we are to our other neighbours.

    Unfortunately, TNFH is a very short guy... Apparently has big chips on both shoulders, which keep him well balanced, and on a straight, unswerving, inflexible course.

    Funny thing is, he has apparently been 30 years in NZ, but hasn't learned to respect his neighbours rights or property, is not a Registered Voter, and doesn't like visits by the Police. When I told him the Police "had accepted" my Trespass Notice, and that it was filed at the local Police Station, he said "Bullshit!" He is so aggressive towards everything I say or do.

    I'm starting to wonder if this doesn't fall under the Harassment Act as well...

  10. #10

    Default

    Quote Originally Posted by artemis View Post
    Agree the TradeMe thread is confusing, and also not legal advice of course. However, I think it covers many of the issues, and would be a useful list to take further advice on for your own situation.
    Good point, thanks!


 

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