New Zealand Law Society - Disputes between your neighbours
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Disputes between neighbours can arise over:
Ideally, you and your neighbour will be able to resolve any problem by discussing it together.
However, if necessary, the law may be able to help resolve the matter. While the law provides a remedy in many instances, it does not cover every case in which disagreements arise between neighbours.
A lawyer can advise you about your rights and any remedies available to protect you from your neighbour’s conduct.
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:
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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:
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.
Lawyers deal with many personal, family, business and property matters and transactions. No one else has the training and experience to advise you on matters relating to the law. If your lawyer can’t help you with a particular matter, he or she will refer you to another specialist.
Seeing a lawyer before a problem gets too big can save you anxiety and money. Lawyers must follow certain standards of professional behaviour as set out in their rules of conduct and client care.
When you instruct a lawyer, he or she must provide you with certain information, as outlined in our guide Seeing a lawyer – what can you expect?
This includes informing you up front about the basis on which fees will be charged, and how and when they are to be paid. The fee, which must be fair and reasonable, will take into account the time taken and the lawyer’s skill, specialised knowledge and experience. It may also depend on the importance, urgency and complexity of the matter.
There could also be other costs to pay, such as court fees. You should discuss with your lawyer how you will pay for the work and advice if you don’t want to spend more than a certain sum without the lawyer checking with you.
A lawyer is required to tell you if you might be entitled to legal aid. The guide Seeing a lawyer – what can you expect? also outlines how you can help control your legal costs and get best value from your lawyer.
Choose your own lawyer for independent advice. You do not have to use the same lawyer as your partner or anyone else involved in the same legal matter. In fact, sometimes you must each get independent legal advice.
Lawyers must have a practising certificate issued by the New Zealand Law Society. You can call the Law Society on (04) 472 7837 (or at one of the offices listed below) or email registry@lawsociety.org.nz to see if the person you plan to consult holds a current practising certificate. You can also check this on the register accessible through the website www.lawsociety.org.nz.
If you have a concern about a lawyer, you can talk to the Lawyers Complaints Service, phone 0800 261 801.