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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22812
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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Our neighbour won't let us build a small deck on our

Customer Question

our neighbour won't let us build a small deck on our property sighting privacy as an issue. We have requested to build a fence on the boundary line to help with the problem but he refuses to let us build a fence saying that it will effect his sunlight. he will not let us plant a hedge either. what rights do we have?
Submitted: 1 year ago.
Category: New Zealand Law
Customer: replied 1 year ago.
the property is cross leased
Expert:  Chris The Lawyer replied 1 year ago.

Under a typical cross lease if you ask for consent for matters like this, then if the neighbour refuses you need to arbitrate to resolve the impasse. If his rejection is unreasonable, then under the usual lease terms, he would be required to consent. The issue will be if his concern about the sun shading his property is real or exaggerated. If he is being unrealistic then the arbitration will go against him. However the arbitration can be be, like any litigation, fairly expensive

Customer: replied 1 year ago.
our view is that a fence or hedge would impact his sunlight. Does this mean that he will win and we will never be able to make the improvements to our house? we have offered to build the deck and add privacy screens to it which would not impact his sunlight at all and would actually provide much more privacy than he currently has. if he agreed to this then we wouldn't need to grow the hedge but he is still not happy with this. does he really hold all the cards?
Customer: replied 1 year ago.
are we legally allowed to grow a hedge on our side of the boundary line? can he stop us?
Expert:  Chris The Lawyer replied 1 year ago.

That is the problem with cross leases, because you need the other cross lease owners consent for any additions. The deck may not be unreasonable however although the fence may be if it will cause shade. And you can plant a hedge on your side of the boundary, bearing in mind that if this does shade his property unduly, he could force trimming to minimise the shading.

Customer: replied 1 year ago.
just to get a complete understanding, because of the cross lease he is entitled to refuse a fence completely. even though we have small children and would prefer our garden to be completely enclosed?
Expert:  Chris The Lawyer replied 1 year ago.

There are fence designs which would not cause shade but provide protection, and he likely could not object to that in an arbitration however

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