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and Development : Trees and fences - know your rights
Disputes over trees, leaves, branches, roots, lack of sunlight and fences are common cause of bad feeling between neighbours. This could be anything from trees that block your sun, roots that choke your drains, fences that your neighbours want built or replaced - often at considerable expense.
Your differences can usually be settled with a combination of tact and compromise, but if you are forced into a stand off, legal action may be your only way out. That could cost you anywhere from hundreds to thousands of dollars and will most likely destroy neighbourly goodwill.
Trees
The Property Law Act 2007 says property owners
are responsible for any nuisance or damage their trees cause
to neighbours, even if the trees were planted before they
brought the property.
But decide first whether the nuisance is worth the risk of
souring relationships with your neighbour. You need to decide
too whether the problem outweighs the benefits the trees
give you both - such as beauty, privacy, shelter and shade.
Try to work out a solution tactfully. Give neighbours time
to think about what you are suggesting. They might be quite
happy to help you with any work caused by their trees if
it means saving them. It's better to talk over the fence
than in a court.
If you reach an impasse, you may need to take legal action.
If you do, tell you neighbour - how would you feel if you
received a court order in the name of your neighbour without
warning? Your neighbour may co-operate if there is a legal
obligation to do so.
If you go ahead with legal action, ask your lawyer to organise
a court order. The District Court will then send a notice
to your neighbour ordering action to be taken within a set
time - or appear in court.
Click
here to visit the New Zealand Consumer website, to know
your legal rights when it come to your neighbours trees,
and your property.
Roots
Problem: A willow tree's roots on a neighbour's
property continually block your drains. Twice in 18 months
you have to get a plumber to clean them. He warns you that
this will be a regular exercise - and expense - unless the
cause of the problem is completely removed. Even worse, it
could eventually cost you new drains. You approach your neighbour
about having the tree removed. He indignantly points out
that the tree was well established on his property long before
you bought the one next door, and says he has no intention of
removing his tree or helping you and your drains. Have you any comeback?
Solution: Definitely. The law does not accept that
a tree planted 30 years ago cannot be a nuisance today. If
all the facts in this situation were presented in court the
neighbour would probably be ordered to remove the tree.
Problem: Some roots of your neighbour's macrocarpa
tree start pushing up your carefully manicured lawn. You
ask your neighbour to do something about it but she says
there is nothing she can do. You then ask her to have the
tree removed. She is not prepared to do that. You decide
to solve the problem by poisoning the roots on your side
of the fence. Unfortunately the poison kills the tree and
your neighbour threatens to take you to court for damaging
her property. Can she do this?
Solution: Yes. You should have dug up and cut
off the roots, or taken court action, rather than use poison
that would lead to the death of the tree. You are allowed
to remove any part of a neighbour's property that intrudes
into yours. But your right to take action stops at the boundary
line between your property and your neighbour's; Using poison
that would have an effect beyond your side of the boundary
is illegal.
Leaves
Problem: A neighbour's oak tree continually
drops leaves in the guttering of your house, forcing you
to climb a ladder every few weeks to get the leaves out.
Do you have to suffer this inconvenience?
Solution: If the branches causing the problem
are growing over your side of the fence you are allowed to
prune them back to the fence. If not, you can ask your neighbour
to cut back the trees or remove them. If the neighbour disagrees,
you could get a court order to solve the problem.
Branches
Problem: You buy a section. There is a large chestnut
tree growing on the next door property, with branches growing
over onto your side of the boundary fence. The law allows
you to cut off the branches on your side, but they are long
and thick making it a major operation. Is your neighbour
obliged to do the work or pay for it to be done?
Solution: No. Provided the branches are causing
no real nuisance, they are your responsibility if they are
growing on your side of the fence.
Problem: You remove a large branch from a neighbour's
plum tree that is growing over your property. This is quite
legal, but unfortunately the result of this "amputation" is
that the neighbour's tree dies. Can your neighbour demand
compensation?
Solution: No. You were within your rights when
you cut off the branch on your side of the boundary. It could
be argued that any resulting damage to the tree was the neighbour's
fault because he did not prune the branch when it was young
and the life of the tree was less likely to be affected.
Sunlight
Problem: Trees in a neighbour's property are
blocking sunlight from your house and garden. Is this a good
enough reason to insist they be cut back?
Solution: Yes. If neighbourly sweet reason fails,
then you can take legal action. You will have to convince
a court that the trees are having an adverse effect on your
property and your enjoyment of it. If the court agrees, the
neighbour will have to cut those trees back.
Fruit
Problem: Fruit trees growing on your property
branch out over your neighbour's. The neighbour picks all
the fruit growing on her side of the fence. Can you do anything
about it?
Solution: Yes. A neighbour must not take from
your property. Even if the branches are hanging well over
your neighbour's section, the fruit on them still belongs
to you. But the neighbour could exercise the right to cut
off the branches which are "intruding" on her property.
Fence damage
Problem: A pine tree growing on your neighbour's side of the fence has grown so large that its trunk is now pushing the fence over onto your property. As far as you are concerned this has already made it impossible to plant anything on your side of the fence near the tree, in case the fence topples onto your plants. You complain to your neighbour, but to no avail. The neighbour says the tree is on his property and apart from any branches that might grow out over your side, it is none of your business. Is he right?
Solution: No! The law is on your side in a
dispute involving a plant or a construction on a neighbour's
property which is damaging yours. The cost and upkeep of
a boundary fence is normally halved between you and your
neighbour, but in this case he is liable for the damage and
must repair the fence or compensate you for the damage.
However, the law goes further than this and says that if
something is a continuing nuisance - and of course this tree
will simply go on growing and pushing over the fence - then
the cause of that continuing nuisance must be removed. In
this case the neighbour could find he has to lose his tree.
Problem: When you brought your home 10 years ago you
had a great view from your lounge window. But now a line
of trees has grown high enough to block your view completely.
The trees are not on your immediate neighbour's property
but a resident further down the street. Can you do
anything about having them cut back?
Solution: You could take the case to court, but
this would be costly and you may not win. Disputes over fences
are more clear cut. Your legal rights are covered by the
Fencing Act 1978. View
the Fencing Act 1978
Problem: You buy a house in a new subdivision.
Your neighbour has barely introduced himself when he asks
you to contribute half the cost of the fence he has had built
between your sections. Trying hard to keep your cool you
say that you are not obliged to pay because the fence was
built before you bought the property, and if anyone should
pay it should be the developer. Are you right?
Solution: Yes. The neighbour can only claim half the
cost from you if he has already notified you that he is having
a fence built.
Problem: Over the years you have fallen out
with your neighbour. The day comes when you realise the fence
between your properties needs replacing, and you approach
the neighbour about sharing the cost. He slams the door in
your face. You decide to go ahead and build the fence entirely
at your own expense. But when the contractor begins the job
your neighbour tells him that he must not set foot on his
property or he will "have him up for trespassing".
Can he do this?
Solution: No. Under the Fencing Act you can
go onto someone else's property if the construction of a
fence makes it necessary. But the Act also warns that you
must do as little as possible to the neighbour's property,
particularly plants. View
the Fencing Act 1978.
Problem: A storm blows a fence over. Because your
neighbour is overseas for six months and you want a fence
to grow passionfruit and sweet peas on, you go ahead and
build a new one at your own expense. When the neighbour comes
back you ask him for half the cost of the new fence, but
he refuses. He says he was not here at the time and had no
say in the cost, and the type of fence that has been constructed.
Can you get him to pay half?
Solution: Yes. The Fencing Act says that if
a fence clearly needs repairing or replacing, you can do
the job yourself and recover half the cost from your neighbour.
A warning, obviously the new fence should not be something
expensive and exotic. A neighbour would have good reasons
to dispute a half share if what was a fairly ordinary wooden
fence has been replaced by a plastered concrete wall topped
with Spanish style tiles!
Problem: Your neighbour decides she would like
to replace a hedge with a fence on your shared boundary.
She says you have to pay for half the cost. You tell her
that the hedge does a perfectly good job and does not need
replacing with a fence. You say there is no way you will
agree to it, let alone pay anything. Are you within your
rights?
Solution: Under the Fencing Act 1978 you have
21 days to lodge an objection to a neighbour's proposal for
a fence. If you do not object (to the District Court Register)
the fence can be built and you will have to pay half the
cost, if you object, the dispute will have to be settled
in court - an expensive and usually an unpleasant business.
