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Topic # 151495 27-Aug-2014 14:13
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Hi 

We have recently become aware that the fences surrounding our property on 2 sides are asbestos, which became apparent when the wood holding them together rotted, and the neighbour over the back got a quote and asked us to pay half. 

We of course agreed as it's the reasonable thing to do. 

The fence on the side of our property is owned by a landlord rather than occupier, and whilst that fence isn't in as bad shape, within 6-12 months it will be in a similar place. 

We approached them to ask if they would pay half, and originally the wife said "of course, it's not a lot of money, it's not safe material especially around kids", but the husband is refusing to contribute unless the fence is falling down. Says he will paint his side to make it safe and won't
entertain the concept at all. It's about $650 his share.

Do we have any legal recourse to force them to contribute?


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  Reply # 1116527 27-Aug-2014 14:21
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There is a fencing act that interprets to, if you want to build a fence on a common boundary, or upgrade an existing inadequate fence, you and the owner of the neighbouring property must go halves on the bill (for a basic fence). your problem may be the inadequate part...



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  Reply # 1116532 27-Aug-2014 14:24
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YadaMe: There is a fencing act that interprets to, if you want to build a fence on a common boundary, or upgrade an existing inadequate fence, you and the owner of the neighbouring property must go halves on the bill (for a basic fence). your problem may be the inadequate part...


Yah I understood there was some legal provision. I am not sure if the fence being asbestos might be a contributing fact or not however. 

Don't want to engage a lawyer over $650 as I imagine we could get a bill for twice that in a heart beat, CAB for legal advice in this instance likely to suffice?


 
 
 
 


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  Reply # 1116536 27-Aug-2014 14:29
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http://www.legislation.govt.nz/act/public/1978/0050/latest/DLM21807.html

You can serve notice on them, but far better to reach an amicable agreement.  Once it turn official it's hard to go back.  The issue for you will be is if the current fence is 'adequate'.  You could also attack it from a health perspective but seeing as the fence is outside I am not sure exactly what grounds you would have.  






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  Reply # 1116542 27-Aug-2014 14:38
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My guess in practice his responsibility for cost will hinge on a professional opinion. From that point of view does it need to be removed for health/safety reasons? If not, then it is not much different to removing a fence you don't like. Strictly speaking you would be liable for the 'damage' also.

Ooth if there is a health and safety reason (well you would present that to him first anyway next step but if) the job has to be done and he refuses to contribute then you have a better case for cost recovery at the DT.

Also consider that simple removal might only be the start. After that you have to agree on a replacement and if relations are not good that might also be a pita.



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  Reply # 1116544 27-Aug-2014 14:39
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scuwp: http://www.legislation.govt.nz/act/public/1978/0050/latest/DLM21807.html

You can serve notice on them, but far better to reach an amicable agreement.  Once it turn official it's hard to go back.  The issue for you will be is if the current fence is 'adequate'.  You could also attack it from a health perspective but seeing as the fence is outside I am not sure exactly what grounds you would have.  




It's even more complicated because the fence is quite long as the property on the other side is actually 2 flats, and the unreasonable neighbour doesn't want to replace it, the other guy is an ex builder, has painted said fence and got a deck built recently. If we got a ruling on safety, his part would have to go as well and I can't imagine him being any too happy about it. 

The issue is if we build a fence off the boundary then if the boundary fence breaks in the future, we are still obliged to pay half, on top of the full cost of the off boundary fence, and the off boundary fence doesn't address the safety issue either.



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  Reply # 1116549 27-Aug-2014 14:41
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gzt: My guess in practice his responsibility for cost will hinge on a professional opinion. From that point of view does it need to be removed for health/safety reasons? If not, then it is not much different to removing a fence you don't like. Strictly speaking you would be liable for the 'damage' also.

Ooth if there is a health and safety reason (well you would present that to him first anyway next step but if) the job has to be done and he refuses to contribute then you have a better case for cost recovery at the DT.

Also consider that simple removal might only be the start. After that you have to agree on a replacement and if relations are not good that might also be a pita.


I am wondering if we should just replace the fence ourselves. I have my back up because the guy was such a dick about it, but either way I think we are up for similar costs/hassle. 

I just hate it when people skirt their responsibilities knowing full well someone else will pick up the slack.

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  Reply # 1116553 27-Aug-2014 14:51
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If you are getting an asbestos fence removed, I would have thought you would need to get proper asbestos removal people in, and that isn't cheap. The asbestos needs to be encapsulated, transported safely and disposed of in an approved place. If the fence is at risk of falling down the asbestos could crack and the particles could be released. I would also be wary of painting it, as it could be dangerous to the paint, as if they brush it down or sand it to get a good clean surface, it could also throw up particles that could be breathed in. At the moment I don't think their is any requirement to notify on this sort of work, so cowboys could do the work unsafely and contaminate your land with asbestos bits and particles. But I would like to see that changed, as it is a terrible material that is slowly killing many who have worked with it. Personally I would get an asbestos professional in to look at it, and see what they say is the best thing to do. They may say the fence will be fine for the next 5 years, as long as it isn't friable or cracked and the asbestos isn't disturbed, it is probably safer than having it removed or painted by novices who don't know what they are doing.



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  Reply # 1116555 27-Aug-2014 14:55
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mattwnz: If you are getting an asbestos fence removed, I would have thought you would need to get proper asbestos removal people in, and that isn't cheap. The asbestos needs to be encapsulated, transported safely and disposed of in an approved place. If the fence is at risk of falling down the asbestos could crack and the particles could be released. I would also be wary of painting it, as it could be dangerous to the paint, as if they brush it down or sand it to get a good clean surface, it could also throw up particles that could be breathed in. At the moment I don't think their is any requirement to notify on this sort of work, so cowboys could do the work unsafely and contaminate your land with asbestos bits and particles. But I would like to see that changed, as it is a terrible material that is slowly killing many who have worked with it. Personally I would get an asbestos professional in to look at it, and see what they say is the best thing to do. They may say the fence will be fine for the next 5 years, as long as it isn't friable or cracked and the asbestos isn't disturbed, it is probably safer than having it removed or painted by novices who don't know what they are doing.


The quote includes the specific requirements for safe and proper disposal. The guy who is doing it, has done a lot of them. The risk is relatively low we are told, because they are constructed in such a way that leakage isn't that big a risk. 



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  Reply # 1116558 27-Aug-2014 14:58
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networkn:
gzt: My guess in practice his responsibility for cost will hinge on a professional opinion. From that point of view does it need to be removed for health/safety reasons? If not, then it is not much different to removing a fence you don't like. Strictly speaking you would be liable for the 'damage' also.

Ooth if there is a health and safety reason (well you would present that to him first anyway next step but if) the job has to be done and he refuses to contribute then you have a better case for cost recovery at the DT.

Also consider that simple removal might only be the start. After that you have to agree on a replacement and if relations are not good that might also be a pita.


I am wondering if we should just replace the fence ourselves. I have my back up because the guy was such a dick about it, but either way I think we are up for similar costs/hassle. 

I just hate it when people skirt their responsibilities knowing full well someone else will pick up the slack.


Serve the bugger with a notice saying its going to be done and this is the cost to you with justifiable reason. If they wish courts are in your favor in all cases. Just be wary you will burn that bridge very well and probably beyond the point of return.
Don't worry, my neighbors hate me. I have a M16 rifle that i shoot in the yard (Airsoft gun). Sister always have parties. Noisy cars and bikes.
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  Reply # 1116560 27-Aug-2014 14:59
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Can you get all three parties together and talk about it? You might be better off compromising and painting your part, holding off on the upgrade even if it's not ideal. Thing is painting could cost as much as a new fence if you pay someone.




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  Reply # 1116561 27-Aug-2014 15:01
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timmmay: Can you get all three parties together and talk about it? You might be better off compromising and painting your part, holding off on the upgrade even if it's not ideal. Thing is painting could cost as much as a new fence if you pay someone.


They will probably paint their side with $300 of paint and probably resin/fibreglass to patch holes then come back in 6 months time with the same issues when it could have been done for under 1000 now.




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  Reply # 1116563 27-Aug-2014 15:04
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timmmay: Can you get all three parties together and talk about it? You might be better off compromising and painting your part, holding off on the upgrade even if it's not ideal. Thing is painting could cost as much as a new fence if you pay someone.


We may not have any other choice, it will come down to whether the asbestos is considered a safety hazard or not. The builder guy in the second flat said that otherwise the fence is sound and we wouldn't have a leg to stand on.

If we are prepared to pay the whole cost, we potentially can do so without the difficult neighbour having any say if I understand correctly?

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  Reply # 1116571 27-Aug-2014 15:13
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networkn: If we are prepared to pay the whole cost, we potentially can do so without the difficult neighbour having any say if I understand correctly?

Personally I don't see it that way. From his point of view the existing fence does not need replacement. You will be damaging [half] someone else's property without agreement.

But from a practical point of view if you get the job done fast enough and the result is comparable or better then it is unlikely he will object to the result, or if he does, unlikely that any real grounds will be present for much liability.

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  Reply # 1116574 27-Aug-2014 15:16
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TimA:
timmmay: Can you get all three parties together and talk about it? You might be better off compromising and painting your part, holding off on the upgrade even if it's not ideal. Thing is painting could cost as much as a new fence if you pay someone.


They will probably paint their side with $300 of paint and probably resin/fibreglass to patch holes then come back in 6 months time with the same issues when it could have been done for under 1000 now.


Yes, but from what's been said there's no way either neighbour will agree to a fence replacement. Even if nn pays for the whole thing the neighbour who painted his fence probably won't be happy to have to redo it.

Communication and compromise will be the key things here I think.




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  Reply # 1116582 27-Aug-2014 15:30
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gzt:
networkn: If we are prepared to pay the whole cost, we potentially can do so without the difficult neighbour having any say if I understand correctly?

Personally I don't see it that way. From his point of view the existing fence does not need replacement. You will be damaging [half] someone else's property without agreement.

But from a practical point of view if you get the job done fast enough and the result is comparable or better then it is unlikely he will object to the result, or if he does, unlikely that any real grounds will be present for much liability.


You are likely right. He is a difficult guy it would seem, though his focus is entirely on cost it would seem (Indian accountant). It could be he is holding out to see if we will replace it at our cost.

If the builder removing and disposing of the fences doesn't do so in an approved manner, are we are him responsible?


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