You and your neighbour

Published 05 Aug 2015
Louis Andreatta

Most commonly, problems with neighbours arise from:

• Dividing Fence

• Overhanging branches

• Noise

• Privacy

• Pets

Dividing Fence

If no fence exists along the boundary with your neighbour, when one owner requires a fence to be erected the neighbour will be obliged by law to contribute one half of the costs of erecting a "sufficient" fence. If you or your neighbour wants a better fence then usually the person requiring a better fence will pay the difference.

Where an existing fence has been damaged because either you or your neighbour was negligent or reckless then the person responsible for the damage incurs the cost of repairing the fence.

Where an existing fence falls into disrepair, generally the law requires that you and your neighbour share the cost of any repair or replacement equally.

If you and your neighbour do not reach agreement, you may make an application to your local Court or the NSW Civil and Administrative Tribunal. The Court or Tribunal has the power to make an order about whether a fence should be erected and a contribution by each person to the cost of such erection or repair.

If you have a dispute with your neighbour regarding a dividing fence, Maclarens Lawyers can advise you.

Overhanging Branches

Most civilian households are affected by tree preservation orders imposed by councils. Accordingly, before cutting or lopping branches contact council to determine whether council permission is required. If you breach a tree preservation order by cutting a branch without first obtaining council permission, you may be committing an offence and you may be fined for doing so.

If your neighbour refuses to remove an overhanging branch, in certain circumstances you may be entitled to remove the branch (after obtaining council permission if that is required). However, property in the removed branch remains that of your neighbour.

If a tree or its roots cause damage to your property, for example if a tree falls on your roof or the roots block a sewer drain or storm water drain or the roots lift your driveway, you may entitled to sue your neighbour for damages. Further the Court can also make an order preventing your neighbour's tree from damaging your property in the future including an order for the removal of the tree.

Maclarens Lawyers can advise you of the steps you should take to remove overhanging branches or your rights to prevent damage occurring to your property. Further, Maclarens Lawyers can advise you of your entitlement to sue for damages where damage has occurred and which has resulted from your neighbour's tree.

Noise emanating from your neighbours property

If you are disturbed by noise coming from your neighbour's property even asked you have asked them to stop, your may be able to bring proceedings against them in a Local Court.

Maclarens Lawyers can advise you of the best way to resolve your dispute.

If you are disturbed by a late night party, you can contact police who have the power to ask your neighbour to stop the noise. Noise resulting from power tools, building work and machinery such as bobcats is regulated by council and their Environmental Protection Agents.

Maclarens Lawyers can advise you more about these rules and the procedures for enforcing them.

Entry onto your land by your neighbour or your neighbour's pets

Generally, person entering your land without permission are trespassers. However, if you have previously permitted your neighbour to enter your land and you have not objected to such entry, the Court may construe your failure to object as permission to enter and withdraw permission at any time. Once you have unequivocally withdrawn permission from your neighbour to enter your land, they must leave and if they do not do so, your neighbour is trespassing.

Similarly, if you inform your neighbour that entry by a pet of your neighbour onto your land is not permitted, any entry by a pet is also a trespass.

If a neighbour trespasses on your land or if your neighbour's pet trespasses your land, you may have the right to sue them or any damage thereby caused.

Further, a wilful trespass by a neighbour onto your property may amount to a criminal offence and if this occurs, you should contact police.

A neighbour, who requires access to your property for the purpose of carrying out repairs to their property if it is close to the boundary, may seek a Court order permitting them to enter your land for that limited purpose.

Privacy

Generally, a neighbour is allowed to look at or listen to what's going on in your property. You may attempt to block their view by constructing a higher fence on your land. However if your neighbour's behaviour amounts to harassment or intimidation, you should contact police and seek to obtain a personal protection order (AVO).

Generally

In the interest of maintaining good relations with your neighbour, we do not recommend that you commence Court proceedings to resolve a dispute without first seeking to resolve the matter amicably. In certain circumstances, Maclarens Lawyers may recommend that you seek to resolve your dispute through mediation. This can sometimes achieve a better result in a cost effective way.

Maclarens Lawyers can advise you on your rights and about the best way to resolve your dispute and if necessary, write a letter of complaint to your neighbour.