Boundaries Limitation as to parcels fencing and the law

Posted on Thursday, April 10 2014


BOUNDARIES: When purchasing a property the location of any fences or hedges on the property are not necessarily the legal boundary. In addition, under the standard Law Society Agreement for Sale and Purchase except in the case of a vacant section the vendor is not under any obligation to point out the boundaries of the property. If the boundary pegs are not in place their location can only be identified by a surveyor. It is important to establish where the actual boundaries of a property lie and whether you are in fact purchasing the area of land that you think you are purchasing. Further you should establish that the title to the property is not “limited as to parcels”.

LIMITED AS TO PARCELS: A “limitation as to parcels” when noted on a title is not a title defect. It indicates that the boundaries and the area of the property are not guaranteed in terms of the Land Transfer Act. Equally it does not necessarily mean that there are discrepancies in those measurements. A purchasers due diligence enquiries prior to committing to purchase a property subject to this limitation should include specialised advice from their solicitor and a surveyor on the limitation.

FENCING AND THE LAW: Once you own a property, whether that property is in a rural or urban location, dealing with boundary fence matters can become a somewhat vexed issue as between you and your neighbours.

The Fencing Act 1978 (“the Act”) sets out sensible procedures for the construction and / or repair of a boundary fence and sets out minimum standards of fencing required for rural and urban properties. If an ‘adequate fence’ is not in existence then the affected owners must contribute equally to the cost of an adequate fence as defined in the Act which also provides for ‘give and take’ fences where the actual boundary is difficult to fence.

Fencing disputes as between neighbours are not a regular occurrence however when they do arise they can become an emotive, time consuming and expensive exercise for all concerned. It is advisable for neighbours to have in place a simple Fencing Agreement between them when building a new fence or repairing an existing one. This agreement should record the following:

• The type of fence and cost of the same
• Survey costs in the event that the boundary pegs could not be located
• The cost of materials and the share to be paid by each effected owner.
• The agreed method of payment particularly in the event that a fencing contractor may need to be paid before the fencing work commences
• The name of any agreed contractor and the liability of each party

If agreement between owners on fencing can’t be reached the Act contains a procedure together with the relevant forms whereby one property owner gives the other property owner a notice specifying the nature and type of fence that is required and allowing the owner on whom the notice is served, 21 days from the date of service to respond. All going well agreement between the two owners is reached. If however the owner who had been served with the notice objects to the proposed type of fence, that owner can in turn, within the 21 day period, deliver a cross notice of objection. If the two parties simply can’t agree then the Disputes Tribunal may be the next step if the matter falls within its jurisdiction or failing that, the District Court.

Feel free to contact Anne Needham on +64 9 3034089 or +64 (0)272266084

By Anne Needham: Urban Legal

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Expert's Bio

Anne Needham

I have over 30 years experience in providing excellent residential property legal services to clients. I have an established local (NZ based) practice and also an extensive off shore client base having acted for clients dealing with New Zealand property who are located all over the world - the internet and cellphones have made this so very easy! In addition Rennie Cox/Urban Legal has been providing legal services since 1923 and is now a progressive modern law firm providing a wide range of legal services to clients.

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