When you bought your property, your lawyer probably gave you a plan taken from the title showing the boundaries of your land. These boundaries were fixed by survey when the land was first subdivided and cannot be altered without your consent and the consent of anybody else whose property is affected.

In the event of a dispute, a surveyor can always establish where the boundary line runs and, if necessary, can replace survey pegs which have been lost or removed.

When purchasing a property, it is always important to check the physical boundaries and to establish the boundary pegs. An encroachment can occur when a building or a fence is built over a boundary.

An encroachment is technically a trespass for which the encroaching owner is legally responsible, whether or not they erected the building or fence. The court has certain powers to help in the case of encroachments. Your lawyer can advise you about these.

Most of the law relating to fences is contained in the Fencing Act 1978.

Property owners can enter into agreements or covenants concerning fencing matters. These may be registered against the titles of the affected land so that subsequent owners will be bound for up to 12 years after registration. This can be a useful way to safeguard against future misunderstandings.

Unless there is an agreement otherwise with your neighbours:

• Fences must be on the boundary line, though there is provision for give and take where the true boundary is difficult to fence.
• The cost of building or repairing a fence is borne equally between adjoining owners, unless one owner damages it, in which case the cost of repairs will fall on that owner.
• You can compel your neighbour to contribute to the cost of the fence bordering your two properties by following the procedures set out in the Fencing Act. However, it is important to comply with those procedures before a fence is erected. This includes giving notice to any adjoining owner that work is to be done and that you would like the adjoining owner to contribute to the cost of the work. You must also estimate the cost and specify the consequences of failing to comply. If the correct procedure is not followed the occupier of any adjoining land will not be liable to contribute to the cost of the fence. Your neighbour can object, in which case a District Court or Disputes Tribunal will decide the issue.
• Developers of new subdivisions usually exempt themselves from contributing to the cost of a fence.
• Under the Property Law Act 2007, it is possible to apply to a District Court for an order to remove or alter a fence that is detrimentally affecting land or obstructing a view. Usually the cost of any removal falls on the person applying for the order.
• Some district and regional plans regulate matters such as the height and colour of fences and how close they may be built to rivers, streams and lakes.

A court can deal with all disputes concerning a fence, such as its type and cost, but it is better to reach agreement if you can. A lawyer can advise you of your rights and obligations in relation to the details of the Fencing Act.

Most people know that when they enter their neighbour’s property without consent they are trespassing. Interference with a neighbour’s right to enjoy their land can amount to legal nuisance.

The law has always been careful to balance one person’s right to enjoy their land with a neighbour’s right to be protected from interference.

Generally a legal remedy is given when nuisances are unreasonable and substantial. Some examples follow.

Animals

In most cases the law regards keeping domestic animals as a person’s natural right. However, if the effect on adjoining owners of the number, type, noise or smell, is severe and unreasonable, a legal remedy could be available. Most local councils have bylaws that control the keeping of domestic animals in towns and cities (including how many may be kept).

If your neighbour’s domestic animals trespass on your land, you have certain rights to remove them or have them removed.

The owner of an animal is liable for the damage it causes while trespassing, but there are special provisions for cats, dogs and stock, as follows:

• Cats are allowed to trespass and their owner is not usually liable for any damage they do
• Dogs, on the other hand, are closely regulated and generally the owner will be liable for any damage their dog does while trespassing or not under proper control
• by the time a dog is three months old it must be registered and microchipped, however this doesn’t apply to working farm dogs
• the control of dogs is usually dealt with in local council bylaws and the Dog Control Act 1996 which requires dogs to be under direct control at all times
• people in charge of a dog in public must use or carry a lead. A dog not under control may be impounded at the owner’s cost
• dogs that attack people, domestic animals, stock or protected wildlife or rush at vehicles may be seized and destroyed by any witness or victim of such an attack; the dog owner is liable to be convicted and fined, and the court must order destruction of the dog unless the owner can establish exceptional circumstances
• local councils may classify dogs as ‘menacing’ or ‘dangerous’–such dogs must be muzzled in public and neutered
• ‘dangerous’ dogs must be fenced in, so people can access the dog owner’s house without exposing themselves to risk of attack
• certain types of dog are classified as ‘menacing’ and can no longer be imported (Brazilian Fila, Dogo Argentino, Japanese Tosa, Perro de Presa Canario and all types of American Pit Bull Terrier)
• all dogs registered from 1 July 2006 and all dogs classified as ‘dangerous’ or ‘menacing’ since 1 December 2003 have to be micro-chipped
• local councils can require dog owners to remove faeces left by their dogs. Dog control officers may require the owner of a persistently barking dog to curtail the nuisance or remove the dog
• Stock owners are liable for any damage caused by their stock wandering onto the road if the presence of the stock on the road is due to the owner’s negligence – that is, where the owner has not taken sufficient care to prevent stock wandering or to warn road users of the likely presence of stock. Where stock trespasses onto someone else’s land, the occupier of that land may claim damages from the stock owner in circumstances outlined in the Impounding Act 1955. However, the occupier cannot recover damages unless the occupier’s land is adequately fenced to keep out the stock or the lack of fencing did not contribute to the trespass

Noise, vibration and smell

The law recognises that people have to live together in communities and there must be a certain amount of give and take before the right to a legal remedy arises. Playing a stereo loudly, machine noise or smoke from a rubbish fire are not legal nuisances if they occur only occasionally.

It all comes down to a question of degree and, to some extent, intention. In many cases, actions by neighbours that interfere with the enjoyment of your property may be contrary to local bylaws or fire regulations. Whether a noise is “excessive” might depend on the time of day. Depending on local council policy you might have to turn music down after 10 or 11 pm. Local council enforcement officers also can issue abatement notices or excessive noise directions to control noxious elements, adverse effects on the environment or unreasonable noise. If you don’t obey the direction, the enforcement officer can come back with the police and take away the source of the noise (your stereo or other sound equipment).

A lawyer can advise you in this complex field.

The Resource Management Act 1991 provides various remedies in the case of persistent noise and other nuisances. In most situations a person can apply to the Environment Court for an enforcement order.

In addition, the Resource Management Act imposes a specific duty on occupiers of land or people using lakes, rivers and the coastal marine areas to avoid unreasonable noise and it allows enforcement officers to require occupiers to reduce noise to a reasonable level.

Unpleasant smells or accumulations of rubbish, if persistent, may amount to nuisances under the Health Act 1956 or may be dealt with by way of enforcement orders or abatement notices under the Resource Management Act.

Resource management law

District plans and other laws control how a property can be used. Through its local council, each community has separate zones for residential, rural, commercial and industrial uses that limit what landowners can do with their land.

The district plan helps protect you – for example by preventing your neighbour establishing a car-wrecking yard or a fish-and-chip shop next door without you having the right to object.

When deciding what to use your property for, you should check with the local council that the proposed activity is permitted by the district plan. If not, you may need resource consent.

If you need a resource consent and fail to obtain one, the local council can require you to cease your activities. You are entitled to make inquiries at your local council about proposals your neighbours have submitted. Local council records relating to applications for resource consents and building consents are public records.

Where your property includes land within the coastal marine area or includes the bed of a lake or river, certain activities such as erecting structures, disturbing the beds or destroying plants may be governed by a regional plan or regional coastal plan, or may require resource consent.

You should know the effect of the resource management laws so far as they affect your property. If you don’t, a lawyer can tell you.

Buildings

Building work, building extensions and alterations to buildings must comply with the Building Act 2004 and national building code and, where appropriate, with the Resource Management Act. Usually a building consent issued by the local council is needed. A building consent is different from resource consent, and both may be required.

Neighbours cannot complain if the proper building consent has been issued and complied with, but if building consent has not been obtained the council can issue a notice requiring the owner to rectify the work (this can include removal).

Failure to comply with a notice could result in the council entering the land to carry out remedial work. The owner may also have to pay substantial fines. Where a building is dangerous or insanitary, a council can issue a notice requiring that work be carried out to correct the situation.

Excavations

Landowners are allowed to dig or excavate their own land, but neighbours are entitled to “natural support”, that is lateral support of the land in its natural position. Excavation that appears to remove support is not in itself sufficient to make the excavating owner liable – damage must have occurred by subsidence.

On the other hand, buildings do not enjoy a right of support so an excavator will generally be liable only for damage to the building (or to the land if the building’s weight led to subsidence) when there is negligence. Local council requirements may require retaining walls to be erected when excavations are undertaken.

Water

A landowner must accept water flowing or draining naturally from neighbouring land but is able to take defensive steps as long as they don’t cause damage to neighbouring land. However, unless an easement has been granted, landowners need not accept water collected artificially on neighbouring land. Therefore, the owner of a swimming pool which leaks or releases water over a neighbour’s property may be liable for resulting damage.

Swimming pools and spa pools

Private swimming pools must comply with the Building Act 2004 and are subject to inspection and certification every 3 years. A spa pool is exempt if it has a safety cover and is set 760mm or more above the ground, in accordance with the building code, clause F9.3.2, in Schedule 1 of the Building Regulations 1992.

Trees and structures

Where land is zoned and used for residential purposes, a District Court can make an order for a tree or structure to be removed if there is actual or potential danger to the applicant’s life, health or property, if there is undue obstruction of a view or if there is undue interference with the reasonable enjoyment of land. In each case the court is required to balance the “hardship” between the competing parties.

Generally, the cost of carrying out any work is borne by the person applying for the order. Subject to these provisions, both you and your neighbours are entitled to plant and grow trees as part of your natural right of land ownership.

If tree roots or branches cross or overhang the boundary, this amounts to nuisance and they may be cut or trimmed back to the boundary (but not further than that) by the owner of the adjoining land (unless the tree is protected because of historical or environmental significance). Such branches or roots or any fruit remain the property of the tree-owner, however. If roots of your neighbour’s trees block drains on your land, you can apply for a court order to have the drain unblocked at your neighbour’s cost or for damages.

Easements and rights of way

There may be arrangements between your property and neighbouring properties relating to rights of way, drains or other matters. These arrangements may require you to do something (a positive easement) or require you to allow something to be done (a negative easement).

The law requires all occupiers of land who use a vehicular right of way to contribute to its cost, unless a contrary intention is expressed in the document creating the right of way. The court has the power to decide issues and disputes in relation to easements and rights of way and may modify or extinguish them.

Landlocked land

In appropriate circumstances the court can order that access be granted to landlocked land. Before allowing access, the court has to consider the nature and quality of the access to the landlocked land when the applicant acquired the land, how the land became landlocked, and the conduct of the parties, hardship and other relevant factors. Access may be granted on conditions that can include compensation, land exchange, fencing, maintenance, survey or costs.

There are several legal remedies available in neighbourhood disputes:

• when the argument is over fences, boundaries or encroachments, the Fencing Act or the Property Law Act applies.
• in cases of private nuisance, the court can grant an injunction (an order directing the nuisance to cease) and award damages.
• if the activity is contrary to local bylaws or district or regional plans or other regulations, the local council concerned has responsibility to prosecute, but you may still need a lawyer’s assistance to pursue your legal rights.
• neighbourhood disputes are ideally suited to mediation. Your lawyer can suggest a suitable mediator.

A dispute between neighbours can upset relationships and lead to discomfort and unhappiness. While using your lawyer to advise you on your rights and remedies, remember it is often best to try to resolve any problems by discussion. Talk to your neighbours about it and, if necessary, write to them – but not in an abusive or unreasonable manner. With goodwill, most disputes between neighbours can be settled.

Many people will need a lawyer at some stage in their life. Whether it is buying your first home, drafting a relationship property agreement, or a matter involving court proceedings, lawyers are here to help you.

It is understandable to feel reluctant about contacting a lawyer for the first time. However, speaking to a lawyer sooner rather than later can often save you time and money, as well as bringing you valuable peace of mind. Find out more about choosing a lawyer and preparing for your first appointment.

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Lawyers in New Zealand must comply with a number of professional obligations. These are described in the Rules of Conduct and Client Care and subject to other overriding obligations including to the courts and the justice system.  

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Legal aid

Depending on your financial situation, you may be entitled to legal aid. Legal aid is government funding to pay for legal help for people who meet certain eligibility requirements and otherwise could not afford a lawyer.

As a client, your lawyer is required to inform you if you may be eligible for legal aid, however this does not mean that your lawyer is in a position to work on legally aided matters.

To find out whether you are eligible for legal aid, visit the Ministry of Justice’s website.

Family Legal Advice Service

Managed by the Ministry of Justice, the Family Legal Advice Service provides free legal advice for people who qualify for the service in relation to parenting or guardianship disputes. Find out more about the Family Legal Advice Service.