Disputes between neighbours regarding trees is all too common. While trees offer a range of benefits, they too can cause a number of problems including:
blocking views;
blocking light/shades the neighbouring property;
clogging gutters or drains; and
damage structures, i.e. driveways and fences.
Generally, every landowner has the right to the ordinary use and enjoyment of their land, which includes the right to plant and grow trees. However, this right is not unqualified, a landowner must not exercise such a right in a way that unreasonably interferes with their neighbour. Therefore, if your neighbour’s tree is interfering with your property, you may have legal rights to get this resolved.
Before taking any sort of legal action, the first step is to talk to your neighbour and give them the opportunity to remedy the problem. This will always be preferable than a lengthy and costly legal dispute.
However, if an amicable agreement with your neighbour cannot be reached, there are other courses of action available.
Firstly, you are able to cut back any branches or roots that are encroaching on your property but only up to the neighbour’s boundary. However, be wary not to trespass or cause damage to the tree or your neighbour’s property.
If the trees have caused actual damage to your property which is under $30,000 and there is a dispute, you may apply to the Disputes Tribunal to seek compensation from your neighbours for the damage.
Alternatively, you can apply to the Court for an order requiring your neighbour to remove or trim the tree. Before making such an order, the Court must balance your rights against your neighbour’s rights and be satisfied that the removal or trimming of the tree is not only fair and reasonable, but also necessary. It will also consider whether:
the tree is protected, or has historical, cultural or scientific significance; and
the risk, obstruction or interference complained of already existed when you purchased the property.
If an order is made, you will have to cover the costs of getting the work done, unless, due to your neighbour’s behaviour, the Court considers that it is fair to order them to pay or contribute to the costs of removing or trimming the tree. Although, if the encroaching tree has caused damage to your property, you can seek the cost to repair the damage.
Examples of cases where the Court has made an order to remove or trim trees include:
Neighbouring trees unduly obstructed views which significantly reduced the value of the property.
Neighbouring trees shading the property which interfered with access to light, impacting the ability to grow crops. The shading of the property and garden was only going to get more significant as the trees matured.
Leaves and debris from encroaching branches blocked a pool pump and blocked internal guttering causing water to enter a house. This interfered with the owners’ use and enjoyment of their property to a sufficient extent to be considered unreasonable. The Court also ordered the neighbour to pay for the repairs to the guttering and the costs associated with putting a new net over the pool.
Tree root encroaching onto the neighbouring property causing the driveway to crack. The Court ordered the neighbour to pay part of the repair costs.
If your neighbour’s tree is causing you problems, we recommend talking to your neighbours first before taking matters into your own hands as this could create more legal issues. Where a solution cannot be reached, we can provide advice on how to avoid or deal with a dispute.