Trees on or affecting boundary fences are some of the most common disputes among neighbors in property law. It is important to know your rights and responsibilities so that such issues can be resolved without breaking any rules.

Overhanging Branches and Leaves Affecting Property

In general, if a branch or limb crosses the fence boundary and is encroaching upon your property, you may be able to trim these back to the boundary line. Any clippings or branches are still technically owned by the neighbor, and may need to be returned. This should be done sensibly, and not merely discarded over the fence. If the branch or limb is particularly large, it may be important to consider whether the lopping of the branch will cause damage to the tree. It is important to discuss these matters with a neighbor before making any decision to drastically cut or lop parts of a neighboring tree.

It is also important to consider that if a tree is a persistent nuisance to your property, a person is not able to enter the premises upon which the tree is located without the express permission of the landowner/occupier. Furthermore, if you want to share the costs of lopping the tress, you should come to an agreement with your neighbor before you engage the services of a professional.

What if the tree is causing damage?

If the tree branches or leaves are causing damage to your property, your neighbor may be liable in negligence for failing to rectify the problem. If the tree branches are not overhanging, but fall or are discarded onto a property, the person whose land the tree is located may be liable under trespass for the debris.

Legal Action

Commencing proceedings over a nuisance tree can be very expensive, and may result in costing you more money than the total cost of the damage incurred. The best course of action is usually a friendly discussion with your neighbor to discuss options. It’s always best to be open to negotiations, and to understand your neighbors point of view. However, this may not always be possible, and inevitably will require further legal action. Some important factors that may affect a successful outcome include:

  • How close the tree is to the fence or boundary
  • Whether council approval is necessary for the removal of the tree
  • Whether the tree is historically, or culturally significant
  • Whether the removal of the tree will cause damage, or if it is structurally integral to any wall or fixture
  • If the owner has taken any steps to prevent damage to persons or property

It is important to note that the court may not decide in your favor, even if the tree is causing or has caused damage due to the above factors. And in any successful case, the outcome may not be what you were expecting. For example, the court may decide to order the tree be removed, but no compensation for damage is to be paid. Perhaps the courts may decide the inverse, and order compensation, but no removal. It is important to consider these factors before commencing any proceedings.

The best course of action is always a discussion between parties. If you would like to know more, or if you have a case that you would like to discuss with one of our friendly staff members, feel free to give us a call.

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