ENCROACHMENTS ONTO LAND

Is your neighbour’s property encroaching onto your land?

Whilst trees and plants more often than not beautify a neighbourhood, it is common for tree roots, branches and even structures to encroach onto the property of neighbours. Sometimes this can cause damage to property, such as when tree roots destroy the pavement of someone’s yard, their water and sewerage pipes or even their house. At other times it can simply be a nuisance when a neighbour’s tree branches are overhanging the fence and littering backyards, obstructing views or reducing light.

With regard to structures, and often those which are the result of extensions or ‘improvements’ made to a neighbouring property, similar problems of encroachment can occur. A neighbour’s structure may be built upon or overhang your land in a way that may inhibit or restrict in some manner your use or enjoyment of your property. 

What action should I take with regard to encroachments?

If a person has a complaint with regard the manner in which a tree, plant or man-made structure obstructs their views or inhibits sunlight from shining upon their property, there is usually no legal solution to the problem if the structure is not crossing your boundary. In such circumstances, the most likely avenue of redress would be to discuss the matter with your neighbour.

The manner in which you should deal with an encroachment depends upon the circumstances. In some circumstances a person may take the situation into his or her own hands and remove the segment of the offending item that crosses their boundary of the person’s property. However, extreme caution should always be used when dealing with encroachments from a neighbour’s property.

You should always consult your neighbour before taking any action regarding an encroachment regardless of whether you have a legal right to take that course of action or not. It must be remembered that you may live side by side with a neighbour for the remainder of your life, and care ought to be taken to ensure that relations are not irrevocably strained. You may be liable for any damage caused to your neighbour’s property.

Should initial approaches to your neighbour prove fruitless, more formal action may be taken with regard to certain encroachments. This includes council assistance and/or a court of law. 

LEGAL OUTLINE

Introduction

As a means of assisting you to deal with encroachments onto your land, the following gives you information concerning your rights and suggestions on how to format letters to be sent to your neighbour and council if the need arises. 

When do I have the right to remove encroachments by neighbouring plants and trees?

The answer to this question depends on the circumstances. The law gives you the right to abate a nuisance but this can only be exercised in limited circumstances. For example, if tree branches are coming over your fence generally you will be entitled to cut the part of the branch that is over your property. However, doing this may have legal repercussions if you damage the tree or the falling branches cause damage to your neighbour’s property. Therefore, it is wise to use a professional to perform any work that involves extensive pruning. Furthermore, it is prudent to seek the consent of your neighbour to avoid any adverse impact on your relations with him or her. If you do not seek the neighbour's consent, you may even be liable to the neighbour for treating the branches and any fruit or flowers they may bear as your own, unless you return them to your neighbour.

On the other hand, if a tree root is causing damage to your property, you may not simply be able to cut away the part on your land. The reason as to why there exists this difference is that by cutting a neighbouring tree’s branches, no damage is being done to your neighbour’s property. Cutting the roots of the tree, however, can cause damage to the tree itself and hence the neighbour’s property.

When seeking to address a problem concerning a neighbour’s tree, you must also keep in mind other legal requirements, such as tree preservation orders. Tree preservation orders prohibit removing or lopping trees of certain sizes or species. Heavy fines may be imposed for breaches of such orders and assistance should therefore be sought from a local council as to whether your proposed actions are permitted. 

So what can I do about problems that I can’t simply remove?

There are several ways you can deal with encroachments. Some ways involve practical inexpensive remedies, and others involve a more sophisticated approach that can cost a lot of money. Just which approach to adopt again depends on the circumstances.

The first step towards resolving a problem should be to contact your neighbour and let them know about the problem. If you have a good relationship, your neighbour may be happy to do the work required to remove and prevent the encroachment.

This approach is most useful when the problem can be easily fixed. However, it is a good starting point for all encroachments as you should always keep in mind the relationship you have with your neighbour.

If your neighbour refuses to remove the encroachment the next thing you can do is to call your local council and ask them to contact your neighbour. They may be able to persuade the neighbour to remove the encroachment. If an encroaching tree or plant is actually the property of the council, you should express your concerns to the council by letter. Always keep a copy of any letter you send.

If the tree is endangering the safety of someone, either by falling or by creating fuel for fire, council has the power to order the removal of the tree. A council may even enter the neighbour’s property and remedy the situation by cutting down the tree itself should it consider necessary.

If you have asked your neighbour and contacted council to no avail, you can personally take legal action against the encroachment. You should write a letter to your neighbour setting out your legal rights and your neighbour’s obligations, always remembering to be courteous.

You should obtain legal advice before commencing proceedings in court. 

What rights do I have with regard to encroachments from structures?

If a neighbour’s building, extension or other structure appears to cross over on to your land, your first resort as always should be to approach the neighbour to see if the matter can be resolved by a simple request directed at him or her. If the structure is easily removed, moved or modified, this may well prove successful.

If your efforts in approaching your neighbour are unsuccessful, however, the services of a licensed surveyor should be sought to determine if your neighbour’s structure is indeed crossing over onto your land.

If your neighbour’s structure crosses your boundary and building certificates or approvals were required for the structure, you should seek the assistance of the council to see if the structure was erected in accordance with plans submitted to council. You may access the plans of the external configuration of a structure approved by council in so far as they show the height and specifications of the relevant structure in relation to site. Should the structure not comply with these plans, a council may order your neighbour to modify or even remove the structure.

Alternatively, the council may simply state that it will not issue the neighbour a building certificate for the premises. Although this in no way forces a neighbour to rectify the problem, it may provide the neighbour with some impetus to correct the problem given that it may negatively affect the future sale of the property.

If the council proves unwilling or is unable to provide any assistance, the Encroachment of Buildings Act may prove to be of use in some instances. The Encroachment of Buildings Act provides a scheme whereby a person may seek the removal of encroaching structures or compensation. This scheme, however, is only of use with regard to buildings that are deemed by the Act to be ‘substantial buildings of a permanent nature’. The definition of buildings though does incorporate walls.

Therefore, with regard to structures that are relatively easily removed, such as a shed or carport, a person may not be able to seek relief in relation to them under the Encroachment of Buildings Act. A brick wall, overhangs from a neighbouring house or foundations would be covered by the legislation, however.

The law of nuisance is another source of legal rights and obligations that may be of some use in relation to structures. It covers physical damage to land and or buildings as well as the loss of enjoyment or use of a property. Actual damage must be established, however.

Unfortunately, if simply setting out your legal rights under the law of nuisance or the Encroachment of Buildings Act in a letter to your neighbour does not prompt him or her into action, enforcing those rights can be very expensive and time consuming. This is due to the fact that it requires the assistance of a court of law and legal advice from a solicitor would be prudent in such a situation.

In an effort to save costs, an alternative means of seeking removal of the structure or receiving just compensation for the encroachment may be to utilise a community justice centre. Consult your telephone directory to see if one exists near you.

In many situations it is often appropriate to attempt to resolve a disagreement at a community justice centre. Community justice centre mediators can assist neighbours in dispute to reach agreement. However, if an easement or other such legal agreements were necessary, legal advice from a lawyer would be required. 

FURTHER INFORMATION

This Information Outline is provided courtesy of Yandell Wright Stell who are experienced in this area of law. They are located at Level 5, 139 Macquarie Street SYDNEY NSW 2000 or call them on (02) 9252-2278 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Yandell Wright Stell Lawyers is a result oriented firm as distinct from a procedurally-oriented firm. The result is achieving your goals as quickly and efficiently as possible and to your best advantage. Our firm through its professionals and support team supply legal services in the following areas of law: *Property law including conveyancing, property development and planning matters. *Commercial dispute resolution and litigation. *Immigration law including all visa applications. *Banking and finance law. *Intellectual property law including trade marks, copyright, designs and patents. *Telecommunications and information technology law. *Insolvency and bankruptcy law. *Corporate, commercial and business law matters. *Family law. We are centrally located in Macquarie Street, Sydney from where we are able to deliver first class results and personal service to all our clients.