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What can be done about Trees overhanging your Tasmanian Property?

Along with boundary fence disputes, overhanging trees, branches and intruding roots onto neighbours property are the major cause of headaches and tension between adjoining landowners. This article explains what can be helpful in resolving this type of dispute.

Firstly, there is no legislation in Tasmania which specifically deals with disputes of this kind. Generally, you cannot prevent a neighbour from cutting away roots or branches of a tree to the extent they trespass on their land. This is despite the fact cutting at the roots may cause the death of the tree. There is also no legal requirement that your neighbour gives you notice of their intention to do so.

It is important to note that the extent of the removal is only back to your boundary, you must not cut branches or roots on your neighbours land. Tree trimmings may be considered the property of your neighbour and may need to be returned. However, it is not a very wise idea to just throw the trimmings or roots back onto your neighbour's property.

The person who trims the tree or cuts the roots may be responsible for the damage. Accordingly, if it is a big job you may like to engage a professional to assist in order to minimise any damage to the tree.

Should your neighbour fail to address the issue of encroaching trees or damage they may be liable for any damage caused.

Taking legal action in these types of disputes should be considered a last resort. There are many reasons for this but the main ones are that it will be time consuming, expensive, stressful and may take over your life. In addition, proving negligence, trespass or nuisance can cause difficulties.

The best thing that you can do is try and communicate in a meaningful way with your neighbour. However sometimes, through no fault of your own, communication breaks down and you may be left with no alternative but to pursue legal action. If so, the grounds of any action should be that the tree has caused, is causing, or is likely to cause damage to the property in the near future, or the tree is likely to cause injury to a person. The following issues need to be considered:

  • where the tree is located in relation to the boundaries;
  • whether the tree affects soil or any other environmental aspects relating to the land;
  • if the tree have any historical, cultural or social significance to the community;
  • has the owner taken any steps to rectify any damage to property or injury to persons in relation to the tree.

If you are successful with your legal action, the court can make the following types of orders:

  • specific performance - an order that the owner of the tree carry out specific actions;
  • entry into the property to carry out the order;
  • ordering costs for works required to be done under the order; and
  • payment of compensation for any damage caused to the property.

You are not allowed to enter the land of the neighbour to carry out any work unless permission has been obtained beforehand, either from your neighbour or the court.

The best approach to any issue with a neighbour is to have open communications with them first.

For more information or if you require any assistance in relation to your Tasmanian property, please contact us on 03 6332 9353 or complete our simple form that can be found at http://www.cormistonlegal.com.au/contact

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