Your Legal Rights: Trees, Fences and Your Neighbours

Disputes over trees and fences are a common cause of bad feeling between neighbours- 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 settles with a combination of tact and compromise, but if you are forced into a standoff, legal action may be your only way out. That could cost you anywhere from hundreds to thousands of dollars and will most likely destroy neighbourly goodwill.

If you would like a hardcopy of this information, please contact our Palmerston North office.

 

TREES

The Property Law Amendment Act 1975 says property owners are responsible for any nuisance or damage their trees cause to neighbours, even if the trees were planted before they brought the property. But decide first whether the nuisance is worth the risk of souring relationships with your neighbour. You need to decide too whether that problem outweighs the benefits the trees give you both- such as beauty, privacy, shelter, shade. Try to work out a solution tactfully. Give neighbours time to think about what you are suggesting. They may be quite happy to help you with any work caused by their trees if it means saving them. It’s better to talk over the fence than in a court. If you reach an impasse, you may need to take legal action. If you do, tell your neighbour- how would you feel if you received a court order in the name of your neighbour without warning? Your neighbour may cooperate if there is a legal obligation to do so. If you go ahead with legal action, ask your lawyer to organise a court order. The District Court will then send a notice to your neighbour ordering action to be taken within a set time - or appear in court.

 

ROOTS

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 clear them. He warns you that this will be a regular exercise - and expense - unless the cause of the problem is 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 brought the one next door, and he has no intention of removing his tree for you or your drains. Have you any comeback?

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.

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 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 posion kills the tree and your neighbour threatens to take you to court for damaging her property. Can she do this?

YES. You should have dug up and cut off the roots, or taken court action, rather than use the 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 the poison that would have an effect beyond your side of the boundary is illegal.

 

LEAVES

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?

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

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 cutt off 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?

NO. Provided the branches are causing no real nuisance, they are your responsibility if they are growing on your side of the fence.

You remove large a 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 your neighbour's tree dies. Can your neighbour demand compensation?

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

Trees on a neighbour's property are blocking sunlight from your house and garden. Is this a good enough reason to insist they be cut back?

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.

 

VIEWS

When you bought 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 immdeiate neighbour's property but on a property further down the street. Can you do anything about having them cut back?

You would have to approach your local city or borough council with your complaint. If the council has a bylaw or a provisioning it's district scheme, it may accept your arguement and order the trees to be cut back. If not you could take the case to court, but this would be costly and you may not win.

 

LEAVES

A large conifer growing on the other side of your back fence is obviously dying. You are concerned that at any time the tree, or part of it, could fall on your house. You ask your neighbour to do something about it. He tells you to mind your own business, as the tree is doing no harm and in his opinion is unlikely to fall down on you or your house. But you are not convinced. Can you have the tree chopped down?

Ask your lawyer to apply for a court order to have the tree removed. If the court agrees that the tree is likely to damage your house, the neighbour will have no choice but to cut it down.

 

FENCES

Disputes over fences are more clear cut. Your legal rights are covered by the Fencing Act 1978.

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 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?

YES. The neighbour can only claim half the cost from you if he has already notified you have he is having the fence built.

 

FENCE DAMAGE

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 get no joy. 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?

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.

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 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 brought the property, and if anyone should pay it should be the developer. Are you right?

YES. The neighbour can only claim half the cost from you if he has already notified you that he is having a fence built.

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?

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 damage as possible to the neighbour’s property, particularly plants.

A storm blows a fence over. Because your neighbour is overseas for 6 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 wasn’t here at the time and had no say in the cost or type of fence that has been constructed. Can you get him to pay half?

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 though: obviously the new fence should not be something expensive and exotic. A neighbour would have good reason 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!

Your neighbour decides she’d like to replace a hedge with a fence on your shared boundary. She says you should have to pay for half the cost. You tell her that the hedge does a perfectly good job and doesn’t need to be replaced by a fence. You say there’s no way you will agree to it let alone pay anything. Are you within your rights?

Under the Fencing Act you have 21 days to lodge an objection to a neighbour’s proposal for a fence. If you don’t 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 unpleasant business.