Loud music at night, not mowing the berm, overgrown trees, cars parked in the wrong place... not everyone has good neighbours. When Jesse Mulligan invited listeners to send in their neighbourly disputes recently, there was no shortage of material.
Civil litigation expert Nathan Tetzlaff, senior associate at Smith and Partners Law, says trees, fences and boundaries cause the most friction.
Photo: pixabay.com
“Trees are a big one. Whether that's roots blocking drains, leaves blocking gutters, or views, views are very big… If someone's trying to sell a house and there's a giant tree in the middle of otherwise perfect sea view, that's going to reduce interest and it's going to give people an incentive to get that sorted out.
“Everybody's got fences, so problems tend to crop up from time to time, and boundaries. Really, it's not a good thing if the neighbour builds their new driveway and you suddenly find that it's half a metre across the boundary on your property that can get a bit aggravating for the people involved.”
Nathan Tetzlaff, senior associate at Smith and Partners Law Photo: Supplied
What are the rules about trees? Can you chop ‘em down?
If your neighbour has a tree that’s blocking your view or sun, or likely to cause harm to property or people, the situation is fairly straightforward in theory, Tetzlaff says.
“There's a section in the Property Law Act which deals with trimming or removal of trees, and there's a range of considerations, that if it goes to court, the court can consider to determine whether or not trees should be trimmed or removed.”
That includes the effect on views, any harm that falling branches (or a falling tree) could could cause either to property or people, and shade.
“Shade is a very big one. There's nothing worse than having your entire house shaded by a giant tree for half the day and the associated damp and so forth that can cause.”
Trees cause problems between neighbours because the rules don’t always align with reality, Tetzlaff says.
“The rules around trees that you can't go into somebody else's property without their consent or without orders from the court,” he says.
If someone comes on to your property uninvited and intending to chop down or trim one of your trees, they are trespassing.
“In theory, the police should enforce that but in reality, you know, the police are overstretched like everyone else. They can't dispatch a police officer every time a neighbour crosses the boundary. That is a really tough situation because we might be talking about people whose ideas about reality don't necessarily align with one another and in those cases, sometimes there is no good answer. The correct legal answer, of course, is that the police should sort it out. But if that doesn't happen, then it can get very rough on the other people involved.”
If tree limbs are coming over your side of the boundary, you are entitled to trim them back to the boundary line. However, you can’t then cut the branches up to use for firewood unless your neighbours are in agreement, Tetzlaff says. It’s the same principle if the neighbours’ tree is dropping fruit in your garden.
“The tree belongs to the neighbour. You have rights over it to the extent that it encroaches on your property, but the tree and the wood and the fruit is still the neighbour’s.”
If the neighbour’s tree roots are breaking up your driveway, they could potentially be responsible for the cost of the repairs, Tetzlaff says.
“Your neighbour's property is escaping and causing damage and generally they'll be responsible for the cost of fixing that damage. In that sort of situation, I'd give the neighbours fair warning that this is the problem: ‘You need to fix it or we're going to’. If they refuse to have anything to do with it, then you might be able to get the driveway patched up and try to charge them for the cost of that.”
Building fences is better than breaking them down – in some cases
According to the Fencing Act, Tetzlaff says, there's a presumption that if there is no adequate fence between residential neighbours, then they should share the cost of putting up a fence on the boundary.
A process set out in the act says that if there's an inadequate fence or no fence at all, you can send a fencing notice to your neighbour that sets out what you want, why you want it, how much it would cost and when you think the work should be done.
“Then the neighbour has time to give you a response to them. And they can object to the fence, in which case they can go to the Disputes Tribunal to get the situation resolved. Or they can agree to the fence in which case you'd split the cost usually 50/50
“If there's disagreement on whether or not it's fit for purpose or falling down, then that's up to the Disputes Tribunal to make a decision on.”
How to make sure you (and your neighbours) are sticking to the boundary rules
Local councils are in charge of rules about where you can build – so if your neighbour puts a 2.5 metres shipping container hard up against your boundary, Tetzlaff says it’s best to talk to the council first.
“If people have a an untidy or a messy section, they're storing parts of cars everywhere, there’s often not a lot that can be done. In Auckland, the regulations are that if anything stored on a property could create a health hazard by encouraging or supporting vermin, long grass that rats might be nesting in, that sort of thing, then the council can require that that be remedied. But something that's purely an eyesore without that additional public health factor to it. You might be out of luck.”
Where trees or permanent structures are concerned, the Property Law Act has jurisdiction. The court can make orders for removal or trimming of trees or adjustments or removal of buildings if it's reasonable to do so.
“It's really an issue of nuisance… Anything which affects your quality of life could be considered a nuisance.”
Photo: Janan Lagerwall for Unsplash
Noise, lettuce-eating rabbits and nosy neighbours – can I do anything about them?
If your neighbours like to party all night, or get chainsawing early, talk to the council, Tetzlaff says.
“The Resource Management Act empowers local councils to set rules about noise - when you can have it what's reasonable, what's not. In some parts of Auckland, it’s not considered reasonable for there to be construction noise on a on a Sunday, for example. Other than that, it's just a question of what's reasonable and what you can prove.
“Generally, if there's noise, your first port of call would be the noise control officer. They'll potentially if you're lucky, send someone around to check it out. And if there's enough complaints, then an abatement notice might be issued. But that's potentially a slow process.”
Tetzlaff says any dispute that impacts someone’s home, where they want to feel most secure and where they spend a lot of their time, is serious.
“Some of the more trivial disputes that I've seen generally relate to privacy. And this could be as simple as I'll get somebody coming to me saying ‘my neighbor keeps looking at me’. You know, on the face of it, it doesn't sound like much. But when you really dig into the issues well, if you've got a neighbor that spends half their time at home, staring through the windows at you every time you walk up to your front door they'll you know, you can see the curtains twitch and they'll just stare at you while you're walking. It can get pretty intimidating and concerning for people. That sort of thing can create a certain amount of anxiety and it's just unpleasant.
“Although there are some examples of neighbourhood disputes which really do sound petty or sound trivial, when it concerns the home, there's really no such thing.”
If you can’t resolve it with a chat over a cup of tea, what’s the next step?
“If it gets bad enough that people have to go to court, then the court can basically make any orders that they think is just in the situation. But for these sorts of disputes, you really don't want to be going to court… it really is in everybody's best interests to try their best to resolve things between themselves.”
Tetzlaff says the Disputes Tribunal is a good, quick process that suits disputes where the value at issue is under $30,000.
“Lawyers don't need to be involved in the Disputes Tribunal although, obviously I tend to recommend that they are. And the tribunal isn't an overly technical court. They are empowered to do what's fair and just in the situation without unnecessary reliance on legalese and technicalities. You often get a very pragmatic, quick determination from them.
“In fencing disputes, they'll all go to the Disputes Tribunal, and it really is a very quick and cheap and effective way of dealing with disputes, providing that it's got the jurisdiction. If you're talking about 12 to 18 months in the district court, you might be talking about two to four months in the disputes tribunal.”
