What to do - Fencing and Trees?
Disputes often arise between neighbours particularly relating to boundary fencing and overhanging trees. Talking the issues through and reaching agreement with your neighbour is the best way of resolving such disputes. But if you cannot reach an agreement, you need to know your rights.
If you want to build a fence on a common boundary with your neighbour (or upgrade an existing fence), in most cases you can use the provisions of the Fencing Act to require your neighbour to meet one half of the costs for an adequate fence that is reasonably satisfactory for the purpose it is intended to serve. You should attempt to discuss your plans and the costs with your neighbour before commencing work. If agreement cannot be reached then you can serve a notice under the Fencing Act.
To compel your neighbour to pay for one half of the costs of the proposed fence, you need to prepare and serve a Fencing Notice which strictly follows the requirements set out in the Act. This notice includes:
- The boundary to be fenced
- The type of fence proposed
- Who will build the fence
- The estimated total cost
- The proposed start date for work
Your neighbour has 21 days to respond to your notice. If they don’t then they are deemed to have accepted your notice and you can seek payment for one half of the costs in accordance with that notice. However, the neighbour can serve on you a cross notice if they object to your proposal. The matter would then be determined by the District Court which can order the neighbour to pay one half of the reasonable costs for such adequate fence. If you build the fence without following the above procedure, you cannot legally require the neighbour to pay one half of the costs that you incur.
Obstructing trees can be a major cause of property disputes between neighbours. Our strong recommendation that you should speak to your neighbour first if there are such offending trees. It is desirable to attempt to reach an agreement regarding having the trees trimmed or reduced in height. If that is unsuccessful then there is the opportunity of utilizing provisions of the Property Law Act.
Section 129C Property Law Act
You can apply to the District Court under Section 129C of the Property Law Act. This section gives the Court the power to order the removal or trimming of trees injuriously affecting a neighbour’s land. Specifically, the section includes factors that the Court may take into consideration in determining whether a tree is obstructing your view or is otherwise causing injury or loss to you. These factors include:
- Interest of the public in the maintenance of an aesthetically pleasing environment
- Desirability of protecting public reserves containing trees
- Value of the tree as a public amenity
- Historical, cultural or scientific significance (if any) of the tree
- Likely effect (if any) of the removal or trimming of the tree on ground stability, the water table or run off
- The Court will not make an order under Section 129C unless it is satisfied that:
- The tree is causing or is likely to cause loss, injury or damage to your life, health or property.
- The tree is obstructing any view that you would otherwise be able to enjoy, or is otherwise causing injury or loss by diminishing the value of your property or reducing the enjoyment of it for residential purposes.
The Court will balance these considerations between the hardship that would be caused to you by the refusal to make such order and the hardship that would be caused to your neighbour by the making of the order.
Neighbour disputes are difficult to resolve. Unlike other disputes where you are able to move on with your life, and need not have any further contact with the other person, with neighbour disputes you still have to live next door to them even after the disputed issue might have been resolved. We believe that it is imperative that neighbours should take all reasonable steps to discuss matters with their neighbour and reach an amicable agreement. As will be noted above, there are likely provisions to assist but even when orders may be made by the District Court, the relationship with the neighbour may have been destroyed which could inevitably lead to future disputes. An agreement (wherever possible) is the best course of action.
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