Neighbour Disputes Series: Getting to the root of that tree problem
Trees offer a wide range of benefits. They can improve air quality, provide cooling and shade, reduce soil erosion, beautify the land, and increase property value. For some people, trees are a thing of beauty, but, in the eyes of others, a tree may be an eyesore or an impediment to the quiet enjoyment of their property. Therefore, it is no surprise trees cause disagreement and tension between neighbours. Often, bitter and costly legal disputes result.
Neighbouring owners each have the separate right to the use and enjoyment of their own land, including a right to plant and grow trees on it. But, that is not an unqualified right. Problems can arise where a neighbour’s tree:
- grows overhanging branches
- causes damage from encroaching branches or roots
- obstructs access to sunlight and/or to the view; or
- blocks drains and gutters from fallen branches or leaves.
Generally, the law enables you to abate a nuisance being caused to you, but only so far as it occurs on your land. This may mean cutting back overhanging tree branches or roots that encroach on your property. You may cut back the tree branches or roots as far as the boundary. But, you should take care not to trespass or do any unnecessary damage to the tree or the neighbour’s property. The cuttings still belong to the neighbour and can either be removed by them or returned to their property. Beforehand, you should check the status of the tree because some trees are protected by the local authority or by a consent notice or by a covenant registered on the record of title. You may also have to consider potential health and safety issues. As such, you should seek legal advice before you undertake any self-help remedy.
If the encroaching branches or roots are causing damage to any part of your property, you may similarly remove them. You can seek to recover the cost of that work, together with the cost to repair the damage, in the Disputes Tribunal (if the claim is up to $30,000) or in the District Court (if the claim is more than $30,000).
If a tree is dangerous or unreasonably interfering with your access to sunlight or to the view but the tree is not on your land, the Court may make orders under the Property Law Act 2007 requiring the neighbour to trim or remove the tree. The Court must be convinced it is fair and reasonable to do so, and the orders are necessary to remove or prevent one or more of the following:
- a risk to a person’s life, health, or property
- an undue obstruction of view
- an undue interference with the ability to grow trees or crops
- an undue interference with the use or enjoyment of the property caused by fallen leaves, flowers, fruit, branches, shade, or interference with access to light; or
- an undue interference with drains or gutters caused by fallen leaves, flowers, fruit, branches, or tree roots.
When deciding the matter, the Court must consider a number of relevant factors including public interest, value, historical or cultural significance, and whether the tree existed when the applicant purchased the property. The Court must also be satisfied the hardship caused to the applicant if the tree is not trimmed or removed would be greater than the hardship caused to the neighbour if the tree is trimmed or removed (for example, the neighbour may lose their right to privacy if the tree is gone).
If the Court makes the orders, the neighbour will normally be ordered to trim or remove the tree within 20 working days and can be required to contribute to the cost of that work. However, the work will usually be at the applicant’s expense.
If a neighbour’s tree is causing problems, we recommend discussing it with the neighbour in the first instance to see if an agreement can be reached. We have seen neighbours who have taken the law into their own hands by picking up a chainsaw or poisoning the tree which only escalates matters and creates more legal issues. Where an amicable solution cannot be achieved, a court-ordered solution is available.
If you would like advice on how to prevent a dispute with your neighbour or on how to deal with a dispute, please contact Mitch Singh or Paul Kim.
