Trees, Fences & Neighborly Friction

Trees, noise and fences. Kids and pets. Dust, water and building sites. Just a few examples in the long list of nuisances that give rise to neighborhood complaints. And historically they have been an issue for a very long time. 

But what can you do if a friendly approach is rejected or apparently ignored? What are your rights? 

Trees  

Trees have been a problem ever since the apple tree in the Garden of Eden. Rotting fruit, fallen leaves or limbs, excessive shade, intrusive roots just to name a few. Whilst sometimes local Council requirements may be of assistance, the common law remedy of “private nuisance” may provide an answer. 

A private nuisance occurs whenever your neighbor does something on their property which unreasonably interferes with your “quiet enjoyment” of your land. Overhanging trees that are not kept properly pruned; or have roots that tend to grow onto your property and damage water pipes or even foundations, can cause expensive repair bills. Private nuisance can allow a compensation claim to be made in these circumstances. 

The tree owner is meant to properly maintain their tree and to use some caution when planting invasive species near a property boundary. However, if they don’t, and you get tired of asking, the law has allowed a neighbor to resort to self-help (called “replevin”). Sawing off the offending branches or digging out the invasive roots yourself might be an option. But if you do, beware. The common law does not permit compensation in addition to self-help remedies. If the invasive roots have damaged your foundations this could prove expensive! 

Fences 

Just like Ancient Rome, no fence can last forever. Rust, rot or unfortunately termites are the traditional enemy of the suburban backyard fence. Most neighbors sort it out over a chat over – or in this case through – the proverbial. It might be agreed to postpone the repair work until finances permit. But sooner or later a new neighbor may want the job to be done. 

When a neighbor is concerned about the state of repair of a dividing fence or wants a fence constructed where there has never been one before, they will need to provide a quote and a “fencing notice” before any formal action can be taken. 

The Magistrates Court in Vic and the Local Court in NSW will then deal with any disputes concerning the cost of building or repairing dividing fences. 

The obligation of the neighbors under State legislation are to share equally the cost of a reasonable fence or to repair the fence to the existing standard. If one wants to replace the existing fence with a grander affair, they cannot oblige the other to contribute more than is reasonable in the circumstances. 

This does not apply where a perfectly good fence has been damaged by say a falling limb or a straying car. In that situation the party at fault should pay 100% of the cost of the repair.