Tree, fence and neighbourhood disputes

Property owners and tenants in Queensland are afforded a variety of legal rights, including to exclude other people from their property, and to enjoy their property quietly and peacefully.

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When these rights are interfered with, there are legal mechanisms in place that allow those property rights to be enforced.

Interference with property rights can occur as a result of many different scenarios. For example, a person may:

  • plant a tree on their property that grows until its branches are overhanging over another property, causing it to drop leaves, branches, seeds, or fruit; or
  • build, alter, or destroy a dividing fence without having first consulted their neighbour;
  • use their lawnmower at 6am every Sunday; or
  • place their wheelie bins in a way that obstructs a neighbour’s access.

These types of disputes can be resolved in a variety of ways, and it is essential to know what your rights are to know how to best address a dispute.

The subject matters of these types of disputes are regulated by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act).

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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.

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Who and where we can help

We can help either party to a tree, fence or neighbourhood dispute. We are here to assist you anywhere in Australia from our base in Brisbane.

Call Gibbs Wright Litigation Lawyers today for a free initial consultation with one of our experienced litigation lawyers to explore your options.

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Why us

Why choose Gibbs Wright Litigation Lawyers

We have extensive experience in resolving neighbourhood disputes. If your neighbour is aware of the problem they are causing, and is unwilling to work with you, we can negotiate a resolution on your behalf, and help you gain relief from a court or tribunal if necessary. Contact one of our experienced solicitors today.

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Frequently Asked Questions

What can I do if my neighbour is threatening me?

If your neighbours are threatening you or your family, then mediation will generally not be appropriate. Instead, you can apply for a “peace and good behaviour order”.

This type of order can be made by the Magistrates Court and will prevent someone from doing anything that may threaten you or your family. It is important to note that a peace and good behaviour order does not cover situations involving harassment or verbal abuse, but rather applies to more serious conduct, such as where your neighbour is threatening or attempting assault or causing property damage.

If at any point, you fear for your or your family’s immediate safety due to the behaviour of a neighbour or anyone else, you should call 000.

A litigation lawyer may be able to help obtain a court order to help prevent ongoing threats (without the person breaching a court order and being arrested).

Do I have to engage a lawyer if I’m involved in a dispute with a neighbour?

The cheapest (and often easiest and quickest) way to resolve any type of dispute that you may have with your neighbour is to communicate with them. In some circumstances, your neighbour might not even know that the problem exists, and by addressing the issue in a civil manner, you may be able to resolve it amicably without escalation and maintain a respectful relationship with your neighbour.

Being on good terms with your neighbour and talking to them before doing things, such as erecting a dividing fence or chopping branches off their tree and sending them the bill, can avoid potential disputes altogether.

However, if your neighbour is aware of the issue and is unwilling to work with you, we can offer legal advice, negotiate on your behalf, and help you gain relief from a court or tribunal if necessary.

Will I need to go to court?

Court proceedings can be costly, time consuming and stressful, so lawyers at Gibbs Wright will always attempt to negotiate a resolution before recommending your matter be litigated in a court.

What is the Gibbs Wright process?

At Gibbs Wright, we work closely with you to determine the best plan for your particular circumstances, considering your finances and your expectations.

We will walk you through the steps of the journey, which begins with a free initial discussion to assess the strength of your case and your legal options.

We will request key documents such as title deeds, quotes and invoices to assess this. If we determine we can help you, we can provide an estimate of fees, depending on the expected cost and complexity of the matter.

Where can we help you?

We are well versed in dispute resolution, and we have an office conveniently located in Brisbane, but we can assist Australia wide. So, if you’re looking for a lawyer to resolve your dispute, call us today.

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How we help

How we can help you

If you have an issue with a neighbour, whether it be because of an overhanging branch, a dividing fence, a garbage bin consistently placed on the road, or for any other reason, the first step in resolving that issue is to understand your legal rights.

Our experienced solicitors can help you determine your legal rights and responsibilities to help you resolve your dispute.

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