The Latest

Fighting over the fence - round two!

I wrote earlier this week about trespassing neighbours.  I explained that if your neighbour comes onto your property to cut a tree (or do other damage), that is a trespass and they can be liable to pay you damages (money).

I did however say that there is always two sides to a story. This is the other side. This is the story from the other side of the fence.

Somebody who read my article said to me “But what if my neighbours trees are hanging over my property, or blocking my view, or causing unreasonable shade?”

First of all, I urge you to do nothing rash.

It may sound self-serving but I recommend you speak to your lawyer so you know what your rights are. This article is based on the general law – what I mean is I’m not telling you to cut a neighbours tree or anything like that. I would need to see the specific tree before I give you advice on what I feel you should do in any particular case!

If your neighbours trees are hanging into your property, the trees are a legal nuisance. It may sound silly but a neighbours tree is an extension of the neighbour. A tree’s branches are not allowed to hang into your property- if you don’t want them there. If the tree is dropping branches or leaves onto your property it needs to be dealt with. If the roots are coming under the fence into your land and (say) damaging your concrete, then it needs to be dealt with.

Strictly speaking you are allowed to cut overhanging branches or roots. This is called ‘self-help’. You are entitled to use self help by trimming it back. HOWEVER if you intend to do this please use extreme caution. If you go over the boundary by just a fraction, you will be trespassing. You will be acting unlawfully like the neighbour in our previous story. I do not recommend this as your first step. The first step should be to write a letter to your neighbour, setting out the problem, and asking that they fix it within a certain timeframe. For example: “Dear Mr Smith, your palm tree is hanging over my fence and dropping its branches into my property. Please trim the branches. If you do not I will trim it back myself”. Again – before you do anything I do recommend you speak to your lawyer. Your lawyer will be able to help you word this demand to do exactly what you need it to do.

If there are no overhanging branches, but the leaves and branches are coming onto your property, then you cannot use ‘self-help’. You cannot trespass onto the other’s land to cut it back. You need either the agreement of the neighbour or a Court order. If the Judge sees that there is damage being done to your property he or she will probably order the neighbour to cut it back.

More contentious is when ‘other’ rights you have are being threatened. So if you have a view of the ocean, and your neighbour plans some big trees, or does not trim his trees and you lose your view, you can go to the Court and ask for a Judge to order the trees to be trimmed to protect your view. These cases are (obviously) ‘harder’ than the simple cases of dropping branches. The Courts will consider each party – the neighbours desire to have the trees (possibly for privacy reasons), versus your right to enjoy your view. This can be quite a specialised area of law so it is recommended (again) that you take legal advice before going down this path. If anyone wants to hear more about these types of cases please let me know and I will write another piece.

If you have concerns about a neighbours trees, and want some legal assistance, please contact Graham Day – Graham@lawnorth.co.nz or phone (09)4077099.

• Posted By: Graham Day on Thu, 18th Aug 2016 @ 07:58:16

Add a comment