Fencing problem with neighbour

[Pa1nter]

I will start at the beginning,
I bought a block of vacant land last year,
There were no sign of the neighbors either side,

Because it is near a school,I paid for a fence to be erected as a safety precaution as building frames had been knocked down by children in the past.
Construction started a month after the fence was erected.

I met the owners of one side about three months later,

I asked them if they would like to pay for half the fence.
They said it was a good fence and agreed to pay for half,we exchanged contact details.

I sent a friendly email invoice for half the fence,
No payment.

I met them again three months later,they once again said they were happy to pay.
Still no payment.

I rang them and asked if he had any intention to pay,he said yes,he would have it paid by two weeks,
Still no payment,

I submitted it to Prushka debt recovery,
He rang me three days later and said he would pay on Monday,
I said I didn't think I could stop the process and he would have to now pay them,he then started on about how he didn't have to pay anyway.

I don't believe he had any intention to pay as my bank details and address were included in the invoice,he just tried to stop the process.
He had 8 months of non payment.

Where do I stand if it goes to court?

I know I was suppose to supply notice to fence,but with no neighbors contact details.I did ask at the land development office and they said they didn't give out owners details.

Will this make any difference as there was an agreement to pay after the fact.
And the fence was erected for safety purposes as well.

I'm not concerned about the money,just the principle,that they said they would pay and didn't.
I would like to add they are now building a new house on their block,so will get some use out of the fence,

 

[RPI]

Hi Painter

I am suprised Prushka agreed to take it.

Under the dividing fences act 1953, you must serve a notice to fence on the owner. If you can't find them, then you can apply to court for an ex parte order to fence and then if they are served with that within 1 year of the order being made they are liable to pay 50%, after a year it is 50% of the cost at the time of the sevice or 50 % of the actual cost, whichever is lesser. However you must demonstrate to the court that you have made reasonable attemps to contact them, which would involve, at the very least, sending a letter to the address their rates go to.

Doesn't sound like that occured so therefore would be no money recoverd under that legislation.

At common law past consideration is no consideration. Which means that there was effectively no contract that could be formed because the neighbour agreed to pay you for something you had done in the past.

Could you mount a case from a different angle, ask a lawyer at $400 plus an hour. You talk about erecting the fence for safety, but for safety it may have been sufficient to buy $200 wouth of orange barrier and some star pickets. Further, the safety you are talking about is the safety of your land, not your neighbours so it was for your benefit not theirs.

My concern would be if Prushka go them in court and they defend and you lose, you may well have costs awarded against you. They could make the cost of the fence seem minimal by comparison.

 

[Cdro]

I can understand why you find it frustrating that they said they would pay and then didn't. But to be honest, to me, it feels a bit rough to put up a fence and then ask the neighbours to pay later on. I know you tried to contact them at the start, but ultimately, at the time the fence went up, they didn't know about it. That isn't their fault, it wasn't their choice to put up the fence and they had no contract with you to pay for half.

I get that, when you had the conversation, they agreed to pay. It sounds like they later realised they were uncomfortable with the arrangement, but didn't tell you. Right or wrong, not everyone is comfortable to communicate bad news directly with someone they barely know. On the flipside, not everyone is sensitive enough to understand when someone is trying to tell them bad news without actually saying it. This is a communication problem - you probably expect them to be more direct, and they probably expect you to be more sensitive. Neither is right or wrong - you're just different people.

Do you really want to go to court with your neighbour over a fence? If you don't care about the money, you won't get what you want anyway. Even if you win, you won't prove your point to them - they'll just think you're unreasonable. And if they win, it will just be a waste of everyone's time and money. Either way, the relationship will be permanently damaged, which will be a pain next time you want anything from them.

One way or another, I hope you're both able to work it out.

 

[nww]

What about if you tell them you are going to take the fence back down.
Tell em it was a high quality temporary safety fence while you were building.

 

[Pa1nter]

What about if you tell them you are going to take the fence back down.
Tell em it was a high quality temporary safety fence while you were building.

I did think of taking some of the fence down,however they could then make me pay for half when they decide they want one

 

[Pa1nter]

Hi Painter

I am suprised Prushka agreed to take it.

At this stage it has just been lodged with them as I am an existing customer,they still have the option of saying no.

Under the dividing fences act 1953, you must serve a notice to fence on the owner. If you can't find them, then you can apply to court for an ex parte order to fence and then if they are served with that within 1 year of the order being made they are liable to pay 50%, after a year it is 50% of the cost at the time of the sevice or 50 % of the actual cost, whichever is lesser. However you must demonstrate to the court that you have made reasonable attemps to contact them, which would involve, at the very least, sending a letter to the address their rates go to.Doesn't sound like that occured so therefore would be no money recoverd under that legislation.

I understand all this,however it was near Christmas, and I had a fencer that agreed to erect it for me in a hurry,so time was a factor as construction was starting in January.

At common law past consideration is no consideration. Which means that there was effectively no contract that could be formed because the neighbour agreed to pay you for something you had done in the past.

Isn't an agreement to pay willingly a contract in itself ?

Could you mount a case from a different angle, ask a lawyer at $400 plus an hour. You talk about erecting the fence for safety, but for safety it may have been sufficient to buy $200 wouth of orange barrier and some star pickets. Further, the safety you are talking about is the safety of your land, not your neighbours so it was for your benefit not theirs.

This is not the angle I want to chase ,they will benefit as they are building a house there now,the times I met them on site they were happy they got a new fence.

My concern would be if Prushka go them in court and they defend and you lose, you may well have costs awarded against you. They could make the cost of the fence seem minimal by comparison.

If they didn't pay after getting the letter,I wasn't going to push it,so no court in the future anyway.

You have been very helpful and only confirms my thoughts,just had to hear it from someone in the know.

 

[Pa1nter]

I can understand why you find it frustrating that they said they would pay and then didn't. But to be honest, to me, it feels a bit rough to put up a fence and then ask the neighbours to pay later on. I know you tried to contact them at the start, but ultimately, at the time the fence went up, they didn't know about it. That isn't their fault, it wasn't their choice to put up the fence and they had no contract with you to pay for half.

I agree with you,however after meeting them and with out pushing they were happy to pay half.If I hadn't met them on their land I had no intention of asking from money from the neighbours,I still have two other sides that I fenced for nothing.I will ask nothing from those people.

I get that, when you had the conversation, they agreed to pay. It sounds like they later realised they were uncomfortable with the arrangement, but didn't tell you. Right or wrong, not everyone is comfortable to communicate bad news directly with someone they barely know. On the flipside, not everyone is sensitive enough to understand when someone is trying to tell them bad news without actually saying it. This is a communication problem - you probably expect them to be more direct, and they probably expect you to be more sensitive. Neither is right or wrong - you're just different people.

I probably lack in Sensitivity and for that I cant change,but when someone says they will do something three times and don't do it,that is a worse problem than lack of sensitivity on my part,

Do you really want to go to court with your neighbour over a fence? If you don't care about the money, you won't get what you want anyway. Even if you win, you won't prove your point to them - they'll just think you're unreasonable. And if they win, it will just be a waste of everyone's time and money. Either way, the relationship will be permanently damaged, which will be a pain next time you want anything from them.

No I don't want to go to court,
I don't live next to them,I have tenants in there,
I believe they are the ones who lose a good neighbour.

Thanks for your input

 

[tom32]

No I don't want to go to court,
I don't live next to them,I have tenants in there,
I believe they are the ones who lose a good neighbour.

Thanks for your input

When you are chasing a tennant you will have to put on the ad:

4br house with a music room in stead of theatre room.

That should attract the right kind of tennants for your purposes. Namely revenge.

 

[lizzie]

i think you've let your emotions get in the way of this one and caused you angst, stress and bad dealing with your neighbour.

from the first you didn't intend for the neighbour to pay half - granted, they then said they would and haven't - but why have you let this get so far out of control if your original intention was for them not to pay anything?

i doubt you will get anything from them and the whole experience has left a sour taste for both of you. a fence, you didn't expect to get paid for in the first place, is not worth the stress and bad vibes now existing.

 

[Pa1nter]

i think you've let your emotions get in the way of this one and caused you angst, stress and bad dealing with your neighbour.

from the first you didn't intend for the neighbour to pay half - granted, they then said they would and haven't - but why have you let this get so far out of control if your original intention was for them not to pay anything?

i doubt you will get anything from them and the whole experience has left a sour taste for both of you. a fence, you didn't expect to get paid for in the first place, is not worth the stress and bad vibes now existing.

Hi Lizzie,
I know you are right,I try and live my life the best I can and looking out for my fellow man,
As a man I feel like I have been challenged to a dual and i have to accept.I don't want to be weak and sometimes I am very easy going,sometimes to easy going.
If they don't pay,that's fine,I will leave it at that,but the next neighbour will have to pay for the selfishness of this neighbour as I will not trust them again without a signed contract.

 

[Pa1nter]

When you are chasing a tennant you will have to put on the ad:

4br house with a music room in stead of theatre room.

That should attract the right kind of tennants for your purposes. Namely revenge.

I have a tenant now that I will not renew the lease in June as they are messy,perhaps I should leave them in

 

[wylie]

I absolutely understand how you feel but you just have to let it go, hard as that is.

If I was you, I would write them a letter along the lines of -

"I realise you have no legal obligation to pay half towards the fence that you said you were happy to pay towards, and which you are clearly benefitting from. However, I was so disappointed that you agreed to pay for half and have not honoured that commitment.

I would have thought more of you had you simply said "no" instead of hiding behind empty promises. I would have respected you more had you had the courage to tell me you will not honour your agreement, and not kept promising to transfer the funds. It is clear to me now that you had no intention of paying the half you agreed to.

I could not do this to my neighbour and I'm sure you must be embarrassed that you have not honoured your verbal commitment to me.

I am very glad that I don't have to live next door to you."

I know I have repeated "promise" and "honour" a bit, but you get the drift.

Many will probably disagree with sending this, and I'm not sure I would go ahead, but perhaps just writing it and leaving it for a while before sending might get it off your chest, out of your headspace and you may not need to send it.

If you do send it, what is the worst that can happen?

You don't have a case legally, but he should have had the guts to give you an honest answer.

 

[Pa1nter]

I absolutely understand how you feel but you just have to let it go, hard as that is.

If I was you, I would write them a letter along the lines of -

"I realise you have no legal obligation to pay half towards the fence that you said you were happy to pay towards, and which you are clearly benefitting from. However, I was so disappointed that you agreed to pay for half and have not honoured that commitment.

I would have thought more of you had you simply said "no" instead of hiding behind empty promises. I would have respected you more had you had the courage to tell me you will not honour your agreement, and not kept promising to transfer the funds. It is clear to me now that you had no intention of paying the half you agreed to.

I could not do this to my neighbour and I'm sure you must be embarrassed that you have not honoured your verbal commitment to me.

I am very glad that I don't have to live next door to you."

I know I have repeated "promise" and "honour" a bit, but you get the drift.

Many will probably disagree with sending this, and I'm not sure I would go ahead, but perhaps just writing it and leaving it for a while before sending might get it off your chest, out of your headspace and you may not need to send it.

If you do send it, what is the worst that can happen?

You don't have a case legally, but he should have had the guts to give you an honest answer.

I will send your letter (with a bit of editing)if they do not pay,
I do sometimes write a heartfelt letter ,leave it and then delete it or modify it and I seem to feel better afterwards,
I know I can sleep at night feeling good with my self,

 

[Graingrower]

Pa1nter, what would you have done if you were in the other blokes shoes?

 

[RPI]

Isn't an agreement to pay willingly a contract in itself ?

No, unfortunately not. I won't bore you with ocntract law any further but if you are bored enough to want to read up search on contract law and look at offer, acceptance, consideration (past consideration especially) and performance.

Good luck

 

[Pa1nter]

Pa1nter, what would you have done if you were in the other blokes shoes?

I would have paid immediatly