Did you know, as an owner or occupier of land, you are not responsible for damage to your neighbour’s land caused by “natural agencies”. A tree is considered a natural use of the soil. As such, your neighbour is not obliged to trim or remove parts of their trees that encroach onto your property. However, if your neighbour does decide to grow a tree, it must not interfere with your use and enjoyment of the land. If you have extended the olive branch to your neighbour and they have been unwilling to cooperate, you have two options.
Option One: Self-Help Remedy
If any part of your neighbour’s tree grows onto or through your land, you may cut the necessary parts of the tree. If you do decide to cut it, you can claim costs for the trimming. If your property has been damaged by the offending tree, you could also claim costs to repair the damage either through the Disputes Tribunal or the District Court.
Option Two: Court Order
Irrespective of whether you own or rent your property, you may apply for a Property Law Act 2007 order from the District Court, which would require your neighbour to trim or remove the offending tree. If you are a tenant and apply under the relevant provisions, your landlord must be joined to the proceedings. The Court applies a legal test, which to summarise, looks at:
- If such an order is fair and reasonable;
- That the order is necessary to remove, prevent or prevent the recurrence of risk of injury to any person or damage to any property, it creates an “undue” obstruction with your view, or the tree or aspects of the tree are causing an “undue” interference with your land.
- The difficulties the tree is causing you versus the costs to your neighbour.
The Courts appreciate the value a tree may have, not only to a neighbourhood, but to the environment in general. As such, if an order is made, it is generally made only to the extent required to alleviate the obstruction, which may entail the tree being trimmed or removed. The work must be completed by a specified date and such an order can specify that your neighbour needs to maintain the tree in future, either periodically or as often as necessary. If your neighbour does not want to comply with the order, you may apply to the Court to give you access to the property in order to trim the tree in accordance with the Court order, and subsequently claim the costs of the work back from your neighbour.
If you apply to the Court, normally you must cover the costs for the work, unless your neighbour has acted badly. In that case, the District Court does have discretion to order your neighbour to pay for part or all of the work needed to be done. Any costs due to damage caused to your property during the trimming or removal of the tree may also be claimed from your neighbour.
If you are having any issues with trees on your property and want to get to the root of the problem, please contact our litigation team.
Disclaimer: All the information published in Property eSpeaking is true and accurate to the best of the author’s knowledge. It should not be substituted for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are the views of the authors individually and do not necessarily reflect the view of this firm. Articles appearing in Property eSpeaking may be reproduced with prior approval from the editor and credit being given to the source.
Content Copyright © NZ LAW Limited, 2024. Editor Adrienne Olsen, e. adrienne@adroite.co.nz m. 029 286 3650
