Boundary fences & shared drains  

What do I need to do, to arrange for a new boundary fence to be built?

The first thing you need to do is talk to the neighbour who shares the boundary with you. You’ll need to come to an agreement with them about building the fence, as well as details such as how high the new fence should be, what building materials it will be made of, and how much to spend on it.

Once you are in agreement it’s best to get it all down in writing as evidence of what you've agreed to.
If you change your mind about the type of fence you want, you’ll need to consult with your neighbour to ensure they agree to it. If your neighbour moves house before the fencing work begins you’ll need to make a new agreement with the new neighbour.

If you aren’t able to come to an agreement about the details of building a fence, you can serve your neighbour with a Fencing Notice.

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Who has to pay for a new boundary fence?

The Fencing Act 1978 provides that in general the occupiers of neighbouring properties which are not divided by an adequate fence, have to contribute equally to the cost of work on a fence. If there is no fence or you think the existing fence is inadequate or in need of repair, then you can expect that your neighbour will share the costs of getting the fence built or repaired, however you can agree to share the cost differently.

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Can I put a boundary fence up without talking to my neighbour?

You should talk to your neighbour first. Even if you intend to cover all the costs of the fence yourself, you need to discuss this with your neighbour and get their consent to go ahead.. 

If your neighbour won’t talk to you or won’t agree with what you propose then under the Fencing Act, you must give notice to your neighbour before you commence any works. If you fail to give the correct notice, your neighbour may not be required to contribute half of the costs of the boundary fence and could even take legal action to have the fence removed.

An exception to this requirement is if the neighbour is away and the fence urgently requires repairs or rebuilding. In this case you can get the work done so that it is similar to how it was before it was damaged, and ask the neighbour to contribute half the cost when they return.

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Can I put up a fence without my neighbour’s agreement if it is on my side of the boundary line?

You could but it may cost you. If you build your fence close to the boundary line and, your neighbour does not like it, they can take legal action and you could be ordered to have the fence removed at your own cost. It is best to try to get your neighbour’s agreement to a fence on the boundary line, or use the Fencing Notice process.  

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Do I need a building consent for a fence?

You do not usually need a building consent for your fence if it is less than two metres high. Consult your local council if you are unsure. 

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Who is responsible for the repair of boundary fences?

Generally the "occupiers" of the properties sharing a boundary share equal responsibility for work on a boundary fence (unless there are contracts or covenants with contrary agreements, or if the parties previously agreed to other conditions). Under the Fencing Act an "occupier" of a property is generally the property's owner, or someone who is not the owner but has a tenancy of at least ten years. 

If the fence is damaged or destroyed by the occupants on one side of the boundary (e.g. damage caused by the roots of their trees), then they would have to pay for all of the repairs.

If one neighbour wants to repair the fence out of their own pocket, or pay a greater share of the cost (e.g. because they want a more expensive fence than the other neighbour) then they can - as long as both parties are happy with this arrangement.  

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What is a Fencing Notice?

A Fencing Notice is a formal proposal to your neighbour which describes the fencing work you would like done (the cost of which you want your neighbour to contribute to). You can use a Fencing Notice if you've already tried and failed to reach an agreement with your neighbour.

The Fencing Notice has to specify the boundary along which work is to be done, the nature of the work (e.g. building a new fence or repairing an existing one, and what it will look like) and the materials to be used. The notice has to state an estimate of the cost of the work, and how those costs are to be shared (if you propose that they aren't shared equally). 

It must also tell your neighbour that they have 21 days to object (see the next question), and that if they don’t object within this period they will be deemed to have consented to the work.

You can download a sample Fencing Notice from the NZ Legislation website.

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What can I do if I object to my neighbour's Fencing Notice?

If your neighbour has given you a Fencing Notice, you’ll have 21 days to make an objection. For example, you may disagree that the existing fence needs replacing, or want the new fence to be built from different materials than what your neighbour has proposed.

To make an objection to the Fencing Notice, you should give your neighbour a cross-notice (scroll down slightly to view the sample cross notice). The cross-notice should outline your objections and suggest any counter-proposals.

If you and your neighbour cannot reach an agreement within 21 days of the cross-notice, then you can try to resolve the matter through mediation or either of you can apply to have a decision made by the Disputes Tribunal or District Court.

If you disagree with a Fencing Notice it’s important not to just ignore it, as doing so implies that you agree with what it proposes.

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My neighbour has started building work on our boundary fence but I was never notified about it. What can I do?

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. You can also object to the new fence in the Disputes Tribunal or District Court (for example, for an order to dismantle the fence). However as you and your neighbour have to live next to each other it’s best to try to come to an agreement about the fence before it gets this far.

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Who pays for repairs to the drain going through my property to my neighbour’s?

Your neighbour probably has an ‘easement’ which allows their drain to go through your property. Your respective certificates of title would show whether such an easement exists.

In this case, you are not responsible for the maintenance and repair of the drain – but you can’t do anything which would prevent your neighbour’s use of the drain, and you would be obliged to allow access to your property if necessary to repair the drain.

On the other hand, if the drain becomes damaged and it is caused by something (such as tree roots) on your property, then you would be expected to pay some or all of the cost of the repairs.

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Who is responsible for the cost of repairing a shared private drain?

A private drain is one which passes through or serves one or more private properties. The drain isn’t necessarily physically located on the owner’s property. According to the Local Government Act, the owners of the properties served by a private drain are the owners of the drain. This means that those property owners may have to contribute towards the cost of any necessary repairs to the drain, up to and including where it connects to the public line.

If a private drain servicing more than one property needs repair, then the owners of those properties may have to share the cost of the repairs.

It is worth checking with your local authority in case there are bylaws relating to how the cost of repairs should be shared between the owners of a shared private drain in your area. Otherwise it would be up to the owners to negotiate how the cost of the repairs will be shared, taking into consideration: 

  • the location of the repair work, 
  • whether one of the properties contributed to the damage requiring repair, and 
  • which properties will benefit from the repair.

For example, if the repair work is done on a section of the drain which goes to your neighbour’s property but not yours, so that you are not affected by the damage nor the repair, then you would  not expect to have to pay for any of the cost of the repairs.

If you and your neighbour are in dispute over how the cost of repairs is shared - or whether it should be shared - then either party can apply to the Disputes Tribunal or the District Court for a decision.