Tree hangover - remedies please
Question from Jen updated on 13th November 2012:
If a neighbour's trees grows over the boundary and overhangs another property, who is responsible to have it trimmed. Are there any laws that apply?
Our expert Hamish Firth responded:
Trees and Neighbours
If you're a landowner, the law says you have the right to the ordinary use and enjoyment of your land. However, your neighbours also have this right. Nobody may interfere unreasonably with other people's use and enjoyment of their land. This means you are responsible for ensuring your own trees do not cause problems for anyone else. If your neighbour's tree is causing problems, the first step is to talk to them. They may not even be aware of your concerns. Give them the chance to fix things up, and look for a solution everyone will be reasonably happy with. If, for example, you are worried about shading, it may be that the tree can be thinned rather than chopped down. A mutually agreeable solution will almost certainly be preferable to a lengthy, costly and bitter legal battle. If the roots or branches of your neighbour's tree encroach on your land, you can cut them back to the boundary line. In law, this is called "abatement. No unnecessary damage should result, and you should not trespass on your neighbour's property. You may not create any other problems for your neighbour. You must not poison the roots or spray the tree with herbicide, as the consequences would extend beyond your property. If you are cutting out part of the tree's roots, take care not to undermine the stability of the tree or the ground around it. Cuttings and fruit belong to the tree owner. You can put them back on their property, taking care not to cause any damage, or ask for them to be removed. If the trunk of the tree extends over the boundary, this does not give you the right to chop it down. A tree planted on your neighbour's land belongs to them, and they will be liable for any damage it causes. But if the tree was planted on the boundary, you are probably a co-owner. If your neighbour does not agree to have the problem resolved, you can apply to a district court for an order for removal or trimming.
If you have incurred costs in cutting back the roots and branches on your side of the boundary, you probably will not be able to claim them back from the tree owner. But if the roots of your neighbour's tree have damaged your drains or a branch falls on your house, they will probably have to pay. Even if the damage results from forces outside your neighbour's control, they may still be liable if they could have been expected to know the tree was unsafe, and did not take reasonable steps to make it safe. This means they will have to pay the costs of fixing up the problem as well as any compensation that may be due.
Local councils are generally reluctant to become involved in neighbourhood disputes about trees. However, many trees are protected. Classification of a protected tree will vary among councils and may include specimen trees above a certain height, native vegetation, or even "blanket protection" of all trees in your area. Before you start to chop down all or part of a large tree, check with the council whether you need special permission. Other forms of tree protection include the listing of significant trees in a district plan, heritage orders under the Resource Management Act and voluntary protection under the Heritage Covenant provisions of the Historic Places Act. There are substantial fines for ignoring some of these protections. Your local council will be able to supply you with details of its policy.
Hamish Firth of Mt Hobson Group manages the Resource Consent application process and provides initial pre purchase advice to investors and developers. www.mhg.co.nz