Any
structure which extends beyond the legal boundaries of a block of
land is termed an encroachment and requires approval. An object
attached to a building or part of a building itself which projects
beyond the boundary of the land are examples of encroachments. There
are special requirements if public roads or public land are affected.
To
make an encroachment legal it must be approved by the controlling
authority and
adjoining owner. You have full responsibility for public liability
associated with encroachments which extend beyond the boundaries of
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.
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.