Trees, neighbours and community law
Community Law Service (Jenny Randall): Free and confidential legal help, information, options available in Golden Bay every Monday. Appointments, phone Heartland Services 525 6151. Nelson Office 0800 246 146.
We need trees. They are a source of food and shelter for birdlife, they improve the quality of the air we breathe and they beautify our towns and landscapes.
But… they also block drains, disrupt walls and foundations, hide the view, cast long shadows, and from time to time, fall down. Trees, especially other people’s trees, can cause feelings to run very high.
If you’re a landowner, the law says you have the right to the ordinary use and enjoyment of your land. However, your neighbours also have this right. Nobody may interfere unreasonably with other people’s use and enjoyment of their land. This means you are responsible for ensuring your own trees do not cause problems for anyone else.
If your neighbour’s tree is causing problems, the first step is to talk to them. They may not even be aware of your concerns. Give them the chance to fix things up, and look for a solution everyone will be reasonably happy with. If, for example, you are worried about shading, it may be that the tree can be thinned rather than chopped down.
A mutually agreeable solution will almost certainly be preferable to a lengthy, costly and bitter legal battle.
If the roots or branches of your neighbour’s tree encroach on your land, you can cut them back to the boundary line. In law, this is called “abatement”. If you don’t want to do this yourself you can ask a district court for an order for the trimming or even removal of the tree.
However, if the tree is not causing harm or loss of enjoyment, abatement may be your only remedy. If you do choose this option, you must do no more than is necessary to abate the nuisance. No unnecessary damage should result, and you should not trespass on your neighbour’s property.
Nor may you create any other problems for your neighbour. You must not poison the roots or spray the tree with herbicide, as the consequences would extend beyond your property. If you are cutting out part of the tree’s roots, take care not to undermine the stability of the tree or the ground around it.
Cuttings and fruit belong to the tree owner. You can put them back on their property, taking care not to cause any damage, or ask for them to be removed.
If the trunk of the tree extends over the boundary, this does not give you the right to chop it down. A tree planted on your neighbour’s land belongs to them, and they will be liable for any damage it causes. But if the tree was planted on the boundary, you are probably a co-owner. If your neighbour does not agree to have the problem resolved, you can apply to a district court for an order for removal or trimming.
If you have incurred costs in cutting back the roots and branches on your side of the boundary, you probably will not be able to claim them back from the tree owner.
But if the roots of your neighbour’s tree have damaged your drains, or if a branch falls on your house, they will probably have to pay. Even if the damage results from forces outside your neighbour’s control, they may still be liable if they could have been expected to know the tree was unsafe and did not take reasonable steps to make it safe.
This means they will have to pay the costs of fixing up the problem as well as any compensation that may be due.
Even if your neighbour’s tree has caused no damage, but is simply being a nuisance, perhaps by blocking sun or light, they may still be liable for the cost of getting the nuisance resolved. This is because tree owners should take reasonable steps to stop the trees interfering with their neighbour’s enjoyment of their own properties.
If your tree is creating problems near a road or public land, the council can issue a notice ordering you to remove or trim it. This might happen if the tree is damaging roads, drains or other public amenities, or if it obstructs traffic or the view of road traffic. Several other statutory authorities also have this right.
If a tree owner and an aggrieved neighbour can’t agree on what to do, several courses of action are open.
Both mediators and arbitrators are available to help resolve a dispute. However, neither party can be forced to take part in either of these processes.
Disputes tribunals can hear claims for damages to property for amounts up to $15,000 (or $20,000 if the parties agree). Typical examples are claims for damage to drains, driveways, foundations and fences.
Generally, however, a tribunal referee will not be able to hear claims when the dispute is over loss of light, sunshine or views, or involves removal or trimming of the tree. In the latter case, a referee can try to help the two sides reach agreement. If your neighbour decides to ignore this, you will have to go to the district court to try to get the problem resolved.
Claims through the district court will almost certainly require the help of a lawyer and can be expensive.
The best advice is to talk to your neighbour and try to work out a solution between the parties. For more information contact your Community Law Office. The information in this article was kindly supplied by Consumer magazine.
Submitted by Golden Bay’s Community Law Service
