Howdy

Boundary Fence[!] Its 60-70 years old yeah right hardly a fence most of it lays on the ground, after four years of asking neighbour to pay half to replace it I finally served a notice on him......he counter claimed for grazing dating back to 2004 OMG[!][!] CAN HE DO THIS???

oops hi guys grew up on a farm 50 years ago...have been living on a small block since 1989,sheep, cattle ,dogs ,horses all good;)

He can, but I would think that they are two different issues. If he has invoiced you for mustering and grazing of your wandering stock, then you can either pay that invoice, or challenge it through the courts. There is a legal maximum daily charge that can be invoiced for daily care of impounded stock, but there is no maximum to the labour rate of mustering them.
But .... if he has no animals to keep in, then he is not required to contribute to the boundary fence. The fence has to be good enough to keep YOUR stock in. So if I stock my place with trees and you have elephants (or cows), my trees will require a different way to keep them in my place than your elephants and cows need to keep them in your place.
Similarly, elephants don't like mice. So you have to keep your elephants out of my place, and I have to keep my domestic mice out of your elephants. So 2 different types of boundary fence are needed.
If he currently has no animals, you can serve a notice on him to pay his half if he ever decides to use the boundary fence that you have fully paid for to keep animals in his place. But this must be done before the new fence is started.

LR are you sure about that? As I understand it the Fencing Act defines a boundary fence (although it can be modified by mutual agreement) and says:
If you want to put up a boundary fence between you and your neighbour -the cost has to be shared equally between both of you.

• If your neighbour won't contribute half of the cost, then you can "serve a notice" on him with estimates of cost.
• If your neighbour does not accept this, he can within 21 days serve a cross notice setting out his objections.
• This process of servicing notices and cross notices within intervals of 21 days can continue and if mutual agreement is not reached, then it has to go to court.
• Any occupier of land who damages a fence is liable for its restitution.

I think that you are right Kate. My reading of the fencing act agrees with yours. I believe it states somewhere the standard of fence required and that if either party requires more than this standard then they must pay the extra cost themselves.

david.kay.lynn;356181 wrote: Boundary Fence[!] Its 60-70 years old yeah right hardly a fence most of it lays on the ground, after four years of asking neighbour to pay half to replace it I finally served a notice on him......he counter claimed for grazing dating back to 2004 OMG[!][!] CAN HE DO THIS???

Your neighbour is confusing two processes. He can counter your fencing notice with a cross notice, but only in terms of a change to your fencing proposal. If he won't agree to your fencing proposal and refuses to come to the party, then you'll have to take it to the Disputes Tribunal (as long as the full amount doesn't exceed their jurisdiction and you haven't already started building a new fence). In my experience with some time-wasting trouble-makers a few years ago, the Adjudicator at the Disputes Tribunal was very careful to be clear about what was reasonable, what was allowable under the legislation applying to the particular case, and anything which wasn't reasonable or pertinent to the case was politely declined for consideration.

If you served a notice according to the example given in the Fencing Act and the only response you have received within 21 days is a counter-claim for grazing, you may have a reasonably good chance of a Disputes Tribunal adjudicator finding that the other party has not responded to your notice and has thereby effectively assented to your proposal.

A counter-claim for grazing could really only be entered when you, after building the fence, have to take him back to court to get the money to pay for it all.

It's all messy and unpleasant, but generally an expensive good fence is worth far more than the ongoing hassles caused by a bad one.

I am not a lawyer.

Thanks guys...yes good fences certainly do make for good neighbours thats for sure.

Kate, by my reading/interpretation, those are "examples" and not "definitions" of what a boundary fence is. That is why there is one for the North Island and one for the South Island. If it were a definition then there would only be one "requirement".
I don't have a fast enough computer with a split screen to find the bit about invoicing later if the neighbour's land-use changes, but I do know that it used to be there. But that notification of an on-going invoice has to be stated before the fencing is started.
Also, having a fence of the example given is nonsence if both farmers want a deerfence on the boudary. It would be daft to have a "required" fence and a desired fence, and my interpretation is that the wording permits a desired and not a "required" boundary fence.
MadCow, as Ruth said, I strongly suspect these are 2 different issues, and if you don't have replies to your concerns within the required period, and you have done the required paperwork, then you can go ahead with the fencing, at your expence. If he wishes to go ahead with his concerns then that is handled by different laws.
Remember that lawyers are exceedingly good at making work for themselves, and many/most cannot or will not interprete the intent of the law, so they make extra work for themselves that way too.

Just wanting them to pay half thought that was the law...its way over due to be replaced as most is smothered in gorse..best to bulldoze and start a fresh...can't graze along this boundary because can't keep cattle in, neighbour is a townie with only has a couple of ponies, they never use this paddock..thought this would be straight forward but OH NO.

I've just re-read the Fencing Act 1978 No. 50 online and it does not now give different definitions for the North and South Islands. Schedule 2 lists examples of a fence of an acceptable standard. This does not exclude any other option that is acceptable to both parties. Obviously if both parties want the same thing, be it deer fence, elephant fence, mouse fence, or whatever, then they share the cost equally as stated in Part 3, Section 9. If, to use the elephant/mouse example, each party requires the fence to serve a different purpose then each is liable for half the cost of a normal fence (as determined by the court if the parties cannot agree) plus the owner of the elephants is liable for the extra height and strengthening to keep his elephants home while the owner of the mice is liable for the cost of the ridiculously small mesh required to contain his mice.

Ruth has it in one. I've been through this process in an urban setting, and if the neighbour served a fencing notice doesn't specifically counter-propose (and from what I understand, that is a proposal as to type of fence/specs, not a refusal!) on that issue within 21 days you can go ahead and build the fence to those specs and claim back half through the Disputes Tribunal.

Luckily our neighbours coughed up when we got to this point when we threatened to lodge the claim for expenses :rolleyes:

Grazing is another issue entirely, and if there was no agreement decided beforehand about this, can't see how he can justify it legally this far down the track.

tigger;356373 wrote: ...Grazing is another issue entirely, and if there was no agreement decided beforehand about this, can't see how he can justify it legally this far down the track.

Take a picture of the paddock which you don't use because of the fence, and his side where your animals don't graze, just for the record.

We tried to get some grazing out of someone who did have an agreement with us, but without copies of the invoices, which had gone astray, we were not successful - another, long-ago disputes tribunal experience. I'd think he hasn't a hope.

more neihgbours at war Hope that tv company isnt watching this thread.

Farmer53;356395 wrote: more neihgbours at war Hope that tv company isnt watching this thread.

Doesn't bother me, we are long gone from the property concerned [}] the fence, however, is still standing []

I might add that hubby and I built the fence ourselves and only charged for half the materials. And still it took a fencing notice and a warning of Tribunal action for them to cough up...

No animals have even grazed their paddock, because in other words these neighbours are complete nutters...their counter claim has been invented to off set the Fencing Quotes for new fence...bottom line is they do not want to pay or have NO money and are finding ways of stalling as first hearing was delayed and each time they come to the court they have another reason or reasons for wanting more time to prepare....the grazing claim is a joke and has nothing to do with the fencing notice The trouble is trying to convince a Judge... justice here is a joke, people can lie and lie and everyone just gets more confused as to who is actually telling the truth. All your comments are much appreciated still trying to smile.