Fencing Cost Liability

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classicTM

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Wannabe Geek

#265814 12-Feb-2020 20:54

Hey people! New guy around here and just need some second opinions.

Below is the arrangement of my house:

So I own 14A, cross leased with 14B. The neighbours in 16 wants a new fence and want us to pay 1/3 of the cost.

From what I've interpreted in the Fencing Act, I shouldn't be liable for any amount towards this new fence as it's not even on the boundary with my house.

Am I correct in my interpretation? Or am I still liable since I'm in a cross lease with 14B who obviously shares the boundary with 16.

Thoughts?

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#2416889 12-Feb-2020 21:04

I would have thought it is on your boundary as the driveway is part of the cross lease? If it was me, and if I was correct, Id have 16 pay half, and 14A and B each pay 1/4

SATTV

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#2416891 12-Feb-2020 21:09

Being a cross lease, I believe that you would be liable for up to 1/3.

is there an existing fence?

What is the condition of the existing fence?

Are they wanting like for like?

I believe you are only liable for a basic fence, if they want a flash one with ship lap or tongue and groove then you should not be asked to pay the full third, only a third of a basic fence.

Also to make it cheaper you could suggest that you all do it, but hire a nail gun, if you not used to banging nails the forearm gets sore real quick.

John

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Bung

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#2416893 12-Feb-2020 21:09

This is from godwinlegal.co.nz
"(b) The owners as a group are responsible for fencing the external boundaries of the development and therefore if any part of the fencing needs to be replaced all owners are liable for an equal share, not just the owner whose flat is adjacent to length of fence being replaced."

Edit. I think 16 is trying it on with 1/3 shares, I believe they pay 1/2 and 14 a & b pay the other 1/2.

classicTM

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Wannabe Geek

#2416896 12-Feb-2020 21:13

tdgeek:

I would have thought it is on your boundary as the driveway is part of the cross lease? If it was me, and if I was correct, Id have 16 pay half, and 14A and B each pay 1/4

Ahh! So I thought the Fencing Act refers that the liability depends on the physical boundary. If this isn't the case, then I guess what you're saying is correct. Will have to consult with my lawyer for double-measure. Cheers!

tdgeek

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#2416897 12-Feb-2020 21:14

Bung: This is from godwinlegal.co.nz
"(b) The owners as a group are responsible for fencing the external boundaries of the development and therefore if any part of the fencing needs to be replaced all owners are liable for an equal share, not just the owner whose flat is adjacent to length of fence being replaced."

How would they define equal share? Id be feeling that based on feet per owner. 16 has 50% of the fence, so on that Id feel they pay 50%. As an example imagine if one of the cross leases had just a few feet?

If it was just a case of 14 and 16 thats 50% each. So that can apply, just that 14A and 14B can share their portion

tdgeek

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#2416898 12-Feb-2020 21:15

classicTM:

tdgeek:

I would have thought it is on your boundary as the driveway is part of the cross lease? If it was me, and if I was correct, Id have 16 pay half, and 14A and B each pay 1/4

Ahh! So I thought the Fencing Act refers that the liability depends on the physical boundary. If this isn't the case, then I guess what you're saying is correct. Will have to consult with my lawyer for double-measure. Cheers!

No, thats my personal fairness position, not legal.

classicTM

6 posts

Wannabe Geek

#2416899 12-Feb-2020 21:19

tdgeek:

Bung: This is from godwinlegal.co.nz
"(b) The owners as a group are responsible for fencing the external boundaries of the development and therefore if any part of the fencing needs to be replaced all owners are liable for an equal share, not just the owner whose flat is adjacent to length of fence being replaced."

How would they define equal share? Id be feeling that based on feet per owner. 16 has 50% of the fence, so on that Id feel they pay 50%. As an example imagine if one of the cross leases had just a few feet?

If it was just a case of 14 and 16 thats 50% each. So that can apply, just that 14A and 14B can share their portion

I think you are correct. To me, at least, that sounds more reasonable. Just sucks that I'd have no benefit from this new fence since my house is basically enclosed. Oh well.

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Bung

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#2416906 12-Feb-2020 21:27

classicTM:
tdgeek:

I would have thought it is on your boundary as the driveway is part of the cross lease? If it was me, and if I was correct, Id have 16 pay half, and 14A and B each pay 1/4

Ahh! So I thought the Fencing Act refers that the liability depends on the physical boundary. If this isn't the case, then I guess what you're saying is correct. Will have to consult with my lawyer for double-measure. Cheers!

IANAL but you and your cross lease neighbour own an undivided share of 14 so it is the physical boundary. Look on the bright side, you could get some help if your fence with 12 falls down 😁 Be careful consulting the lawyer, could be a few metres of fencing.

classicTM

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Wannabe Geek

#2416919 12-Feb-2020 21:52

Aha! I like the positivity! I feel like I'll just have to suck it up for now since I don't have the thousands of dollars needed to convert into a freehold title. Bugger.

Thanks, mate!

mattwnz

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#2416927 12-Feb-2020 22:02

IANAL . Has the owner of 16 actually asked you to pay a 1/3 each? I wonder if that is the case, where they have got their information from, or are they just trying it on. Shouldn't they be paying half, and then the properties on the other side of the fence then pay 1/2, divided in 2?. eg you pay a 1/4 . But you should check with a lawyer or CAB

classicTM

6 posts

Wannabe Geek

#2416930 12-Feb-2020 22:06

Yes, they've asked me to contribute 1/3 of the fence cost, but I feel that what most people is suggesting is my actual liability (that is, only 1/4).

I'll talk to my lawyer tomorrow to discuss what my actual liability is.

froob

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#2416932 12-Feb-2020 22:09

Might be worth going and having a talk to your local community law centre. They often have drop in sessions, and I'm sure they get questions on fencing quite often.

For what it's worth, from a very quick look at the Fencing Act, I agree with your interpretation and don't think 14A would be liable to contribute to the fence with 16.

Here's section 9:

Subject to the provisions of this Act, and to any order of the court made under this Act, the occupiers of adjoining lands not divided by an adequate fence are liable to contribute in equal proportions to work on a fence.

So, the obligation to contribute is on the "occupier".

Here's the definition of occupier from section 2:

occupier—
(a) in relation to any land, other than a public reserve, means the owner thereof, except that,—
(i) where another person is in occupation of the land under a tenancy granted for a term of not less than 10 years certain or continues to be in occupation of the land after having been in occupation thereof under such a tenancy, that other person shall be the occupier of the land; or
(ii) where no person is an occupier of the land by virtue of subparagraph (i), but a person is in occupation of the land as mortgagee in possession, that last-mentioned person shall be the occupier of the land:
(b) in relation to any public reserve, means the local authority, trustees, or persons in which or whom control of the reserve is vested

So the occupier is usually the owner, but if there is a tenant of a 10+ year lease or a mortgagee in possession, the occupier will instead be the tenant or mortagee.

This being a cross-lease, the owner of 14B likely has a 99 or 999 year lease of the driveway, meaning they are the tenant and would be the occupier under (a)(i). This is assuming it's their exclusive driveway under the cross lease and not a common area.

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#2416933 12-Feb-2020 22:23

You are doing the correct thing consulting a lawyer. Cross leases make it a bit of a mess.

Has the neighbour served you with a notice under the fencing act? There are time bars to respond otherwise they can proceed under deemed acceptance.

Is the current fence damaged or is it in your opinion adequate? IF you are liable for costs you aren't liable for the costs of a gold plated fence, just one that is adequate. If the current fence is adequate then the neighbour has to pay the whole lot themselves. Of course "adequate" is subject to interpretation.

jonb

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#2416935 12-Feb-2020 22:25

Interesting. I replaced half the back of my fence - me being equivalent of 14B, and didn't think to ask 14a to contribute, only the rear boundary neighbour. My '14A' neighbour didn't ask me when they replaced their fence with '12'. I maintained the fence and hedge to 16, it was starting to need replacing but moved house before it was required.

mattwnz

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#2416968 13-Feb-2020 00:14

tdgeek:

Bung: This is from godwinlegal.co.nz
"(b) The owners as a group are responsible for fencing the external boundaries of the development and therefore if any part of the fencing needs to be replaced all owners are liable for an equal share, not just the owner whose flat is adjacent to length of fence being replaced."

How would they define equal share? Id be feeling that based on feet per owner. 16 has 50% of the fence, so on that Id feel they pay 50%. As an example imagine if one of the cross leases had just a few feet?

If it was just a case of 14 and 16 thats 50% each. So that can apply, just that 14A and 14B can share their portion

Guessing it is intentionally vague. I am in this same situation myself, but I am the equivalent of number 16,. I always assumed I pay for half, and the other two owners who own the property on the other side of the boundary line (a shared driveway) would contribute 1/4 each. But others have told me that it is a 1/3 each. So I am a bit confused myself. It is better for me if everyone pays a 1/3 each, as there are 3 parties benefiting from the fence. It is confusing, and I haven't seen any examples of this type of situation.

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