How do I resolve encroachment from my neighbors?

Question from John updated on 29th April 2011:

Most of the tenancy issues are addressed from the point of view of city dwellers. Things can be a bit more complex in the country. e.g. there is typically multiple land use. The current issue is with stock from the property (it is 58 acres, he occupies .25acre) coming into his portion. There is a shared access (I hope to open up an alternative road access eventually) and this is understood. Unfortunately the stock belong to my brother and his wife who graze the rest of the property. Is this a neighbourhood issue or a tenant one (I respect that the tenant should have the right to quiet enjoyment)? I have asked my relatives to respect this right, but seem powerless to enforce it; especially since I live 90 minutes away. Is there a sensible way to resolve such issues? I cannot see that I can enforce a trespass notice or the like?

Our expert Jeff Montgomery responded:

Under the Residential Tenancies Act 1986 (the Act), landlords have a responsibility to ensure that they do not interfere with the tenants’ quiet enjoyment of the premises, and they must also take all reasonable steps to ensure that none of their tenants interfere with the quiet enjoyment of their other tenants in the use of the premises.

You may wish to look at options that would prevent the stock from encroaching on the tenant’s property (e.g. fencing) to avoid further disturbance to the tenants. Please note, however, that the Act only applies to tenancies for residential premises and does not cover, for example, commercial leases or where the whole or a substantial part of the tenant's income is derived from the use of the premises for agricultural, pastoral, horticultural, or other similar purposes.

To help determine whether your situation is covered by the Act or not and, if so, what your responsibilities are, you can visit the Department’s website (www.dbh.govt.nz) or call 0800 TENANCY (0800 836 262). You may also wish to seek independent legal advice from a solicitor, or your local community law centre.

The Department of Building and Housing provides information and guidance on building law and compliance, services including weathertight homes, and advice for tenants and landlords.

 

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