Trees and Fences

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 probably 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 bought the property.

Trees and fences

You have a range of options when a neighbour's tree is causing you a nuisance, from a friendly chat through to a court order.

You should first try to approach your neighbour and explain the problem, as you might be able to reach an amicable solution.

If you do seek a court order to have a tree trimmed or removed on your neighbour's property, in most circumstances you will be required to meet the cost of the work. You will also have to provide evidence of the nuisance and convince the court of the merits of what you seek.

To know your rights when it comes to neighbours' trees and your property visit consumer.org.nz

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:  A neighbour must not take from your property without permission. Even if the branches are hanging well over your neighbour's section, the fruit on them still legally belongs to you. In the interests of neighbourly relations and the health of the tree, it's probably better to let them have any overhanging fruit - 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.

Fences

Fences don't just define a property boundary. In whatever shape, form, style or construction fences play an important role on your property and in your neighbourhood.

Residential Fencing GuideHigh, solid fences between houses, streets and open spaces also create wasted spaces and deadends, prevent good surveillance and have poor visual appeal.

Closed boarded, high fences can not only be unattractive but can also increase crime by reducing surveillance. The Hastings District Council wants to encourage fencing options which are practical, look good adjoining reserves and residential areas, and help to reduce crime by increasing surveillance to both public and private spaces.

For those considering building a fence within the Hastings District, whether it is along a front or rear boundary, or even adjoining a public space or reserve, you can help achieve this goal by considering and implementing good practice fencing design.

The Residential Fencing Guide identifies three boundary options to enhance your neighbourhood, streetscape and open spaces.

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