Landowners have the right to ordinary use and enjoyment of their land, which means the right to plant gardens and trees.
But what happens when those same trees are causing shade, dropping leaves, damaging pipes or obstructing a neighbour’s view?
The law of nuisance provides the owner of the tree is responsible for any damage caused. A landowner who has a tree encroaching on their land from neighbouring property is entitled to trim it back to the boundary line, but no further. They must also be careful not to kill or undermine the structural integrity of the tree when cutting its roots. This is called ‘abatement’ of the nuisance and may be the only redress available to a landowner when the tree is not causing harm or loss of enjoyment.
It pays to make sure that any trees on your land or neighbouring property are not protected either under the Resource Management Act 1991, or the Reserves Act 1977. These pieces of legislation operate to preserve native and protected trees, and District Courts have not hesitated to fine landowners who have contravened their provisions.
We recommend that before trimming a tree back to your neighbour’s property that you try and talk to your neighbour about possible solutions first. Where there is damage being caused to your property you may apply to the District Court for an order to have the tree removed and any damage repaired at the tree-owner’s cost. This is regulated by Sections 332 – 338 of the Property Law Act 2007, which outlines what the court will give consideration to, and what the orders it may make.
The court will make the order provided that it is convinced doing so is ‘fair and reasonable’ and necessary to prevent undue obstruction, interference or risk to the neighbouring property concerned, which has included obstruction of sea views in previous cases where the trees were serving no beneficial purpose under s335 of the Act (see the High Court case of Yandle v Done [2011] 1 NZLR 255). Clearly in most cases the trees have only limited rights when they restrict the rights of others.
If you are in doubt about your rights as a landowner regarding neighbouring trees or those on your own property feel free to ask us to make the investigations on your behalf.