Tree, fence and neighbourhood disputes

Property Lawyers

Types of real estate disputes we can help you with

Tree disputes

A tree dispute is a disagreement between neighbours about trees growing on and/or affecting adjoining properties.

Common tree disputes involve trees causing damage to a neighbouring property, overhanging branches and costs related to removing branches and general tree maintenance.

The first step in resolving a tree dispute is to determine who the “tree-keeper” is (this is not necessary the legal owner of the tree). Generally, the tree-keeper will be the owner of the lot on which the tree is situated. If that lot is leased, then the tree-keeper will be the tenant.

The tree-keeper is responsible for making sure that their tree does not overhang their neighbour’s land, and that there is no risk of it causing damage or injury.

If a tree is situated on your neighbour’s land, and its branches overhang onto your land, then you may be able to exercise your common law right of abatement and cut those branches off. If those branches have fruit on them, you are usually entitled to keep the fruit.

If a tree branch extends more than 50cm onto your property and is 2.5 metres or less off the ground, you can provide your neighbour with a notice under the Act that they must cut and remove the overhanging branches.

The notice must allow at least 30 days for them to do so from the day they are provided with the notice. If they have to come onto your property to cut the branches, you may ask them to give you notice at least one day before the work will be carried out to confirm when, and by whom, the overhanging branches will be removed.

If you give notice under the Act and your neighbour fails to cut the branches as per your request, you may cut them yourself, and either keep or return them. The neighbour may be liable for your expenses in having branches that are overhanging over your property removed, to a maximum of $300.

Fence disputes

Disputes may arise about dividing fences between adjoining properties where the owners of adjoining land disagree about whether a fence should be constructed, modified, or removed. Disagreements can also occur about where the property boundary actually is.

A dividing fence separating adjoining land is, under the common law, jointly owned by the adjoining property owners.

Where one party wants to build or remove a dividing fence, they have several legal options and responsibilities regarding how they should have the fence built or removed.

Because both parties are joint owners of the fence, they are jointly liable for its construction and maintenance. However, unless the work done to build the fence is urgent or ordered by the Queensland Civil and Administrative Tribunal (QCAT),liability will only arise where the joint owners have agreed to carry out the work.

An owner may give their neighbour a notice under the Act which requires them to contribute to the carrying out of the fencing work. That notice must include:

• a description of the land where the work is to be carried out (including the line on which the proposed construction or repair will take place);
• the type of fencing work to be carried out;
• the estimated costs (including labour and materials); and
• a quote for the works to be done.

If a dispute has arisen between you and your neighbour about precisely where the property boundary lies between your adjoining properties, you can engage a cadastral surveyor to determine the boundary line.

You should give your neighbour notice that you are engaging a cadastral surveyor to determine the boundary before the works are carried out.

If you believe that your neighbour intends to construct or demolish a dividing fence without authorisation, you can apply to QCAT for an order preventing them from carrying out the works. If they have already carried out the works, you can apply to QCAT for an order that they remove, modify, or rectify the fence.

Neighbourhood disputes

Disputes between neighbours can arise for a many reasons, and the rights which apply in resolving those disputes will depend heavily on the cause of the issue. For instance, the common law tort of nuisance will apply where someone’s peaceful enjoyment of their property is being interfered with, such as through excessive noise. The tort of trespass will also be available if your neighbours are entering your property without your consent.

Exercising common law rights can often require engaging in court litigation. Although part or all of the legal costs are often ordered to be paid by the losing party, neighbourhood mediation is also available attempt to resolve a matter without going to court.

The Queensland Government offers mediation through its Dispute Resolution Centres. Mediation can be an effective way to resolve a dispute where the parties are willing to agree to a resolution; however, it is important to note that no decision made at mediation will be legally binding on the parties to the dispute.

QCAT has jurisdiction to hear disputes under the Act which cannot be resolved by negotiation or mediation.