Summer 2014 Newsletter

Love thy neighbour

Disputes with neighbours can arise over many things; noise, fences, trees and animals etc. Ideally, you and your neighbour should be able to resolve any problem by discussing it and acting reasonably. However, if this is not possible, the law may be able to help resolve the matter.

Encroachment

When you purchased your property, your lawyer should have shown you a copy of the Certificate of Title for the property. The Certificate of Title records the plan of the property and its boundaries with neighbouring properties that were determined by land transfer survey. It can be disastrous for a land owner to discover that they do not actually own all of the land they thought they did because they relied on fences and natural boundary markers, rather than the boundaries shown on the Certificate of Title.

Encroachment is where you or a previous owner of your property has erected a structure and part of the structure is on a neighbouring property. This is technically a trespass and the encroaching land owner is legally responsible, whether or not they erected the structure. The definition of structure includes any building, driveway, path, retaining wall, fence, plantation or any other improvement.

The Property Law Act 2007 enables a party to seek relief where an encroachment exists. Whether or not relief should be granted is an exercise of judicial discretion and must be considered “just and equitable” in the circumstances. Relief can be provided by directing that the structure be removed, granting an easement (or alternatively a right of possession for a specific time) over the land under the structure, or transferring that land to the person who owns the encroaching structure. If the wrongly placed structure is a fence, no relief may be granted if the dispute can be resolved under the Fencing Act 1978.

Boundary fences

The Fencing Act 1978 sets out the rights and responsibilities relating to fences between neighbouring properties. It provides a statutory framework to resolve disputes that may arise. This includes (but is not limited to) determining what constitutes an adequate fence, the cost of building or repairing a fence, who is responsible for those costs, and who is to do the work. Land owners can enter into agreements concerning fencing matters that can be registered against the titles of the affected lands for a period of up to 12 years after registration.

Overgrown trees

The overhanging of branches of your neighbour’s trees onto your property is also considered encroachment. You are allowed to cut the branches back to the point where the tree crosses the boundary; however it is a good idea to contact your local council to ensure the tree is not a protected tree or talk to your neighbour about it.

If your neighbour is not prepared to do anything, you are able to apply to the District Court for an order requiring your neighbour to remove or trim any tree if it is causing damage or injury, obstructing your view or otherwise reducing the enjoyment of your property or if it is diminishing the value of your house.

If any of these circumstances apply to you, we suggest you seek legal advice regarding your rights and responsibilities. Seeing a lawyer before a problem escalates can save you anxiety and money.

In a perfect world, you and your neighbour should be able to resolve any problem by discussing it together. The law is careful to balance one person’s right to enjoy their land with a neighbour’s right to be protected from interference.

If your neighbour’s pet comes onto your property without your consent, this is trespass and you have certain rights to remove the animal or have it removed. Interference with a neighbour’s right to enjoy their land can amount to legal nuisance if it is unreasonable and substantial. In most circumstances, the animal’s owner is liable for the damage it caused while trespassing. Most local councils have bylaws that place rules and requirements on owners for keeping domestic animals in towns and cities.

Dogs – the Dog Control Act 1996 sets out the legal obligations on dog ownership, including their care, control and the owner’s responsibilities for damage caused by their dog. Dogs must be under the direct control of their owners at all times. For example, if a dog digs up a neighbour’s plant, the neighbour can make a claim in the Disputes Tribunal if the dog’s owner does not agree to pay for the damage.

If a dog is causing a nuisance by persistently barking or howling, a complaint can be made to the Dog Control section of your local council. A dog control officer can give the dog owner a written notice requiring them to stop the nuisance, and if necessary, remove the dog from the property.

If you see a dog attacking a person or any stock, poultry, domestic animal or protected wildlife, you have a right to seize or destroy the dog in order to stop the attack. If the dog is seized, it must be handed to a dog control officer or the police who will either impound the dog or have it destroyed.

Cats – unlike dogs, cats are not closely regulated, and are allowed to trespass. The cat’s owner is not usually liable for any damage made by their cat.

Stock – stock owners are liable for any damage caused by their stock wandering onto the road if the owners have not taken sufficient care to prevent this from occurring. If stock trespass onto someone else’s land, the occupier of the land may impound the stock and seek damages under the Impounding Act 1955.

Noise & smell – if your neighbours, or their animals, are making excessive or unreasonable noise, a complaint can be made to the local council. An enforcement officer will usually investigate the complaint and decide what action should be taken under the Resource Management Act 1991. This will usually be either an excessive noise direction for a short-term problem (e.g. noise from a stereo) or an indefinite Abatement Notice for an ongoing problem (e.g. noise from a factory).

An application can also be made to the Environment Court for an Enforcement Order to stop an activity that is causing excessive or unreasonable noise.

The gathering of rubbish or unpleasant smells may amount to nuisance under the Health Act 1956 and be dealt with by way of enforcement orders or abatement orders as well.

Neighbourhood disputes are ideally suited to mediation and your lawyer can suggest a suitable mediator, if required.

Fixture or chattel – why should I care?

When buying or selling property, fixtures are generally included automatically, chattels are not. This can cause difficulty as it is not always clear whether something is a fixture or a chattel. Fixtures are usually fixed to, and form part of the land, whereas chattels are usually movable. To further refine the test, you will need to examine on a case-by-case basis why and to what extent the item is fixed to the land. It’s not always easy – these matters often end in dispute.

A dishwasher is arguably a fixture where it is plumbed and wired directly to the house and part of the cabinetry. It’s arguably a chattel if it rests on its own weight, has easily detached plumbing and a regular power plug.

To avoid confusion, write it down. If something should be included (or specifically excluded) record it in the agreement. If in doubt, seek advice!

Snippets

Mangonui Pop-Up Office

We are pleased to announce our fortnightly pop-up office at 76 Waterfront Drive, Mangonui is now open to better serve our clients in the Far North.

Our staff solicitor Sacha Yanke, a Taipa local, is excited to be able to provide this service in the community she has grown up in.

Christmas Hours

Our office will close at midday on Tuesday 23 December 2014 and will re-open on Monday 12 January 2015 at 8:30am.

Our Mangonui Pop-up Office will open on Monday 2 February, and fortnightly after that.

The team at McLeods Lawyers wish everyone a happy Christmas and great New Year.

 

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McLeods Lawyers — 21 Hobson Avenue, Kerikeri, Bay of Islands, New Zealand — Phone +64 9 407 0170 — Email law@mcleods.co.nz

The information on this site is not comprehensive legal advice. Please contact us for advice and information suited to your needs.