Understanding the Fencing Act - Lawyers?

[donna]

Hi All,

Mods say there's no need to delete the thread or entire posts - (we have removed a couple of comments) however. We've come full circle in this particular discussion in any case - PTcruza has apologised and now understands the etiquette required here. Thanks everyone - I can say I've been quite intrigued with this thread and I'm keen to know what happens next.

cheers,

Donna

[mrsaneperson]

PTcruza would it be possible for you to draw a diagram to illustrate your particular situation? It may bring more clarity.

For my own situation I undertook to get a new fence put up along a ROW, the original one was dilapidated . I was on one side of the fence which meant a 50% contribution and I had 3 other parties on the other side each contributing 16.66%.

What a bloody hassle! Eventually they all paid up though. Here are some of the encounters that took place:

1. Neighbour A said he preferred no fence at all.
2. Neighbour B said he would contribute his share but only if Neighbour A was happy to do so..
3. Neighbour C was fine but would need to do a time payments plan stretched out over a year.
4. Neighbour A finally decided he was happy to contribute but then Neighbour B decided he hadn't actually said what he'd said in terms of his verbal agreement to contribute if Neighbour A was happy to contribute. To make matters worse Neighbour B told me this news the day before the contractors were due to build the fence..

Note: The fence went ahead as scheduled and Neighbour B finally coughed up several weeks later but not before threatening legal action saying he hadn't signed anything!

[PTcruza]

Hi there mrsaneperson,

Many thanks for posting about your own fence building experience. I'm so glad to hear that you were able to achieve the desired end result, with everyone paying up at the end of the day.

Let's hope we can do the same. I'm very keen to hear what you think.

PTcruza would it be possible for you to draw a diagram to illustrate your particular situation? It may bring more clarity.

Indeed! I have already drawn up a diagram, visible here, which I hope clarifies this unusual situation. [ https://ibb.co/bRVVDa ]

You are lucky in that you own the section (land) on the boundary to be fenced. As you'll see, we don't... which means we are trying to get a fence built on someone else's land, on the outer edge of the Right of Way (to which we also have Rights of Way) that goes around two sides of our property. I think you are lucky to be liable for 50%, because you are 100% entitled to build a fence there.

Our situation is complicated by a very hostile and aggressive neighbour immediately on the other side of the RoW, who clearly has designs on using our RoW rather than his own, simply because ours is nicer. He is responsible for removing the sections of fence shown as Removed... Identified as TNFH - The Neighbour From Hell!

I believe we should be entitled to have fences just like any other property owner, but there seems to be a lot of confusion and differing opinions about that in our case, due to our non-ownership of the boundary line.

[To clarify, we want to re-fence each arrowed section on the Diagram which includes the word "Fence" - so, two white stripes and one back one.] White sections were removed unilaterally by TNFH.

Love to hear your thoughts.

[PTcruza]

I know a number of people are following this issue, and there is no clear answer in sight as yet.

Something to ponder in the meantime...

Right of Way conflicts are very common, and can get deadly serious, which is partly I why I've been feeling so reactive.

Anyway, deadly Right of Way conflicts may be much closer to home than many people think, as the following story highlights.

This happened in the affluent Castor Bay on Auckland's North Shore in 2006. It's another one of those truly bizarre cases where two known, grown men have a physical fight, one of them ends up dead, and the other gets a slap on the wrist. Apparently, a working, 41 year old tradie, versus a retired 64 year old boat builder.

For some even stranger reason, the survivor of this conflict obtained Permanent Name Suppression.

My little bit of research suggests that he bought a new house 10 days after the death, so I guess he had trouble living next door to his neighbour's widow after that. Pity he didn't do that a couple of weeks earlier. Other things suggest he has spent a lot of the time since then trying to prove to the world that he's actually ok and a nice guy. It sounds like he struggles to live with it, every day. No doubt, he carries a load of guilt. Sometimes, I guess, escaping punishment is worse.

http://www.police.govt.nz/news/release/2343

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10388623

I think there's another, more detailed story about this incident somewhere, but I can't find it again right now.

Personally, given how difficult it is to find the relevant answers to many of these common legal issues, I believe the law / legal system is very much at fault.

[PTcruza]

The other version...

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10382726

[mrsaneperson]

Just read those posts above where the death occurred - tragic..

Looking at your diagram of your situation - What will you achieve with fencing of the ROW's ?

Presently they are left open which :

1. Gives a wider birth and easier access to the parties considered

The detractors of establishing a fence on the ROW:

1. Establishing a fence on the ROW will create a partitioning effect which would secure you slightly more privacy but lessen the wider birth of the ROW
2. Establishing a fence would also lead to costs and maintenance factors.
3. Conflict with TNFH

[PTcruza]

Just read those posts above where the death occurred - tragic..

Yes, very sad. And unnecessary. I don't know why there was no prosecution, but the circumstances were probably too much in dispute, by the sound of it. And, like OJ and Ewen MacDonald, seemingly the younger guy had a much better lawyer.

Looking at your diagram of your situation - What will you achieve with fencing of the ROW's ?

Our first desire is to protect our legal rights to reasonable enjoyment of our own property, without constantly being threatened in some way or another by our neighbour.

Our "friend" (TNFH) has been running this process of gradual encroachment ever since we arrived. It's really tiresome. We've had enough.

I suspect there may be a great deal of jealousy at the root of it. They paid quite a bit more than we did, for a property which I think is quite inferior to ours. They had the opportunity to buy ours before we did, but maybe they missed out for some reason, and may have been irked ever since. Maybe they think they can push us out, so they can somehow acquire our place. Or, maybe it's just because I have stood in the way of him just taking whatever he wants. Someone else might be weaker, easier to dominate.

I just don't know, but for about 5 years, they got a lot of their official mail sent to our address instead of their own. Maybe they have been hiding from the authorities, just don't know. Their actions repeatedly seem to indicate that they wish they owned our place. They seem to want to claim parts of our property. For example, the fences, the Right of Way. Spare timber at the back of our garage. Other things - I won't bore you with all the dreary details... Putting up a decent fence between the two RoWs would have the effect of keeping them at at a more suitable distance, "at bay" so to speak. We're hoping a decent fence would put us "out of sight and out of mind" for him.

The second reason is security. There is a gate through to the Council land at the end of the other RoW. That used to be secure, but since they (TNFH) moved it to allow for their obstructing yard apron, it no longer is. Since they are installing an Electric Gate, I guess they don't care. They don't seem to care about anyone else much. So, people from the HNZ flats across the gully now constantly cut through the Council land and through the now insecure gate. Because there is no fence, these strays have more easy access to our property, and a greater choice of escape routes. We've lost property from our back yard. We've had various unknowns knock on our door to see who is home. We've even been burgled, while we were home, so limiting access is a good thing! Fortunately, we saw that one, but he still got away with some property. Amazing how fast these guys can move when they have to. The neighbours have also had various shoes taken from their back door. Having the wide open RoWs just seems to be more inviting to crims than a set of confined driveways. Just last week, we even found an old guy wandering about on the back section of the RoW. He seemed harmless enough - we had a long chat with him, and I think he was really glad of someone to talk to - but it just shows how people seem to perceive the existing setup. Like a free-for-all.

We have other reasons, but this is already getting long winded...

Presently they are left open which

1. Gives a wider birth and easier access to the parties considered

That won't change due to re-fencing. There is already the remains of the old fence at that end of the RoW, but it stops 2 or 3 metres inside the road boundary, to allow just that, and better visibility. We would be happy to keep that as it is.

The detractors of establishing a fence on the ROW

1. Establishing a fence on the ROW will create a partitioning effect which would secure you slightly more privacy but lessen the wider birth of the ROW
2. Establishing a fence would also lead to costs and maintenance factors.
3. Conflict with TNFH

Yes, the privacy is something we really want. Sick of the sight of TNFH glaring at us.

Yes, there would be costs etc. I'm still trying to find out how those would be shared, but it may be as little as 1/6th each. Probably, the "admin" would be the bigger hassle (getting the money out of the neighbours). But we'd be happy to pay, just for the peace, and increased security.

Regarding conflict, that's already there. We are hoping a fence would reduce it. Like separating two squabbling kids!

Many thanks for your interest. Hopefully, it will resolve sometime soon, without any deaths or injuries. [Don't know why the quotes are coming out like that, but when I fix it, it goes back to that...]