Don’t forget your roots

If you have a legal interest in a property, you must take all steps necessary to prevent the trees on that property from causing damage to your neighbour’s property. This is because, at law, every person has the right to the ordinary use and enjoyment of their land.

Importantly, this responsibility which landowners owe to their neighbours extends not only in relation to the actions of the landowner, but also to forces of nature operating on the landowner’s property, such as the growth of tree roots beneath the surface of the ground.

The same principle applies to branches which overhang or encroach onto a neighbour’s property, or trees or other structures which substantially and unreasonably block sunlight, views, or otherwise diminish a neighbour’s enjoyment or value of their property. This rule applies regardless of whether or not a tree was already in existence at the time the property was purchased. The law does not accept that a tree planted 30 years ago, for example, cannot be a nuisance today.

It should also be noted that, where tree branches or roots cross a property boundary, the offending roots or branches may be cut or trimmed back to the boundary line in order to abate the nuisance. Before doing so, however, you would need to check that the offending tree is not protected under the district plan. There are rules in some districts that require expert assessment and/or intervention before trimming or felling a protected tree.

Provided you are entitled to trim the tree, care must also be taken to ensure that the tree’s health or structural integrity is not compromised as a result of such abatement, as your neighbour may be able to claim compensation if the tree dies.

In the event of a dispute, the first step is to see whether you can reach an agreement with your neighbour. A mutually agreeable solution is always preferable to having the matter decided by a court, particularly where the matter concerns a neighbour.

Where an agreement cannot be reached, the case can be heard by the Disputes Tribunal or District Court. The Disputes Tribunal can hear claims for damages to property for amounts up to $15,000 (or $20,000 if the parties agree). Typical examples of claims which come before the Disputes Tribunal are cases where damage has been caused to drains, driveways, foundations and fences.

In determining the extent of liability, the court will look at all the facts of the case including the location and ownership of the tree (trees planted on the boundary are generally co-owned between neighbours), the cause of the damage, the extent of the damage, and whether such damage was reasonably foreseeable.

It is likely that a court will require an owner to meet the costs of the damage to their neighbour’s property where the owner knew that the tree was dangerous or could have otherwise reasonably foreseen the resulting damage, and did not take steps to mitigate such damage.

If the damages sought exceeds the Dispute Tribunal’s jurisdiction or relates to loss of light or views, or if the claimant is seeking to obtain an order to have their neighbour’s tree removed under the provisions of the Property Law Act 2007, the case will need to be heard by the District Court.

An order may be made by the court to remove a tree where that tree poses a risk to person or property, or any unreasonable interference with the claimant’s enjoyment of their land, provided that the hardship caused to the claimant by not having the tree removed would outweigh the hardship caused to the owner by having the tree removed.

In summary, you have a responsibility to ensure that the trees on your land do not unreasonably interfere with your neighbour’s enjoyment of their land, which may require trimming trees as and when required and making efforts to remain aware of the health and stability of trees within the proximity of your neighbour’s property. Conversely, your neighbours owe the same duty to you.


For further information please contact

GKT

Greg Thomas

Email: greg.thomas@harkness.co.nz

Direct Dial: +64 7 834 4667

Email this page  Print this page Back to top