I'm having a dispute with my neighbour over a tree, what can I do?

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What makes this country what it is, is the number of trees that decorate our towns and countryside. But these specimens of nature can also have a detrimental effect in causing peoples emotions to turn sour, by disrupting foundations, blocking drain pipes, impairing views and casting long shadows.

If you are a landowner, at law you are afforded specific rights with regard to your land, in particular, the right to the ordinary use and enjoyment. Conversely, your neighbour is also afforded such rights.

Consequently, nobody is permitted to unreasonably interfere with anothers use and enjoyment of that persons land. As a land owner, you are solely responsible for ensuring that your own trees do not cause problems for anyone else.

However, disputes do happen as land owners often form a deep emotional bond with their trees. In the event that your neighbour's trees are obstructing your view or disrupting your foundations, the first step would be to talk to your neighbour and give them the opportunity to remedy the problem. An amicable agreement will almost certainly be preferable to a lengthy, costly and bitter legal battle.

However, if discussions with your neighbour fail to resolve the problem then several courses of action are available.

Both mediators and arbitrators are available to help resolve disputes associated with trees. Alternatively, the
Disputes Tribunal has the jurisdiction to hear claims for damages to property, but this is limited for amounts up to $15,000 (or $20,000 if the parties agree). Typically these will be claims for damage to drains, driveways, foundations and fences, but, the Disputes Tribunal will not be able to hear claims for disputes over loss of light or views, or claims that involve the removal or trimming of trees.

For claims that fall outside the financial jurisdiction of the Disputes Tribunal or involve light, views, trimming or removal, you can apply to the District Court. The Court can award monetary compensation for damage caused by a tree. It can also order that a tree be removed or trimmed.

With regard to costs, there are likely to be costs incurred where roots or branches have intruded onto your property and need to be removed. The extent of the encroachment will determine whether you will be able to claim them back from the tree owner.

If you have incurred costs in cutting back the roots and branches on your side of the boundary, you will probably not be able to claim back those costs from the tree owner. But if the roots of your neighbour's tree have damaged your drains or a branch falls on your house, they will most likely be liable to reimburse you for any costs incurred.

An important issue to be aware of is that even in the situation where damage has resulted from forces of nature, being from forces outside your neighbour's control, they may still be liable. If they could have been expected to know, or should have foreseen that the tree was unsafe, and did not take reasonable steps to mitigate any potential damage the tree could cause. This will mean that the neighbour will be required to pay the costs of repairing the problem as well as any compensation that may be awarded.

It must be noted that when undertaking any works concerning trees, please remember that any tree planted on your neighbour's property belongs to them and they are liable for any damage it causes. People often go further than is necessary when attempting to remedy problems, such as trespassing onto a neighbour's property and losing focus as to what is essential to abate the nuisance.

Even if your neighbour's tree has caused no damage, but is simply blocking sun light, which at law we refer to as ‘causing a nuisance’; the neighbour may still be liable for the costs of having the nuisance resolved. As previously stated, this is because the tree owner is required to take reasonable steps to ensure that their trees do not interfere with a neighbour's enjoyment of their property.

Finally, with regard to contacting your local Council, local Councils are generally reluctant to become involved in neighbourhood disputes about trees. But do a preliminary check with Council prior to any removal or cutting to ensure the trees concerned are not protected under Council by-laws, due to their species, significance in a district plan, being subject to a heritage order or under voluntary protection.

If you would like to discuss any matters related to disputes with your neighbours, please contact one of our  Litigation Solicitors, on 836 0939 or by emailing partners@smithpartners.co.nz

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