Property Boundaries – Overhanging Trees

My husband and I recently bought a house with two beautiful trees in the backyard.  One is a lychee tree, which our neighbours warned the fruit bats often get to enjoy before we will even see them.  The other is a mango tree.  The mango tree has grown at an odd lean, meaning its branches borders onto our neighbour’s yard.  While not a problem now, I was immediately concerned it could cause problems in the future, should the fruit fall into their yard.

Issues relating to overhanging trees are addressed in The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the “Act”).  While it is encouraged that neighbours attempt to sort the matter between themselves initially, it is important to understand exactly what constitutes land affected by a tree, who is responsible, and what remedies are available when the neighbours cannot come to an agreement.

When is land “affected” by a tree?

Just because a few leaves from the neighbours tree may blow into your yard on occasion does not mean your land is affected by the tree.  In order to be covered by the Act, one of the following must apply:-

1. Branches from the tree overhang the land; or
2. The tree has caused, is causing or is likely within the next 12 months to cause:–
   1. Serious injury to a person on the land;
   2. Serious damage to the land or any property on the land; or
   3. Substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.

An example of unreasonable interference is if large seeds, pines, or fruit are constantly littering your yard, requiring you to go out of your way to provide regular cleanup of the litter.

Who is the “Tree-Keeper”?

For standard residential lots, the owner of the land which the tree is on is the Tree-Keeper.  If it is part of a body corporate common area, then the body corporate is the Tree-Keeper.  In essence, whoever is the registered or legal owner of the land is recognized as the Tree-Keeper.  If the tree is right on the boundary between the two neighbouring lots and there is a disagreement about who is responsible, it may be worth contacting a surveyor to determine who the responsible owner is.

Responsibilities of a Tree-Keeper

The Tree-Keeper is responsible for maintaining the relevant tree, which includes cutting and removing branches of the tree which overhang the neighbour’s land.  They must also ensure the tree does not affect the neighbours land by causing injury, damage or unreasonable interference per the above.  A failure by the Tree-Keeper to attend to this does not in and of itself result in an immediate breach of the Act but can lead to the neighbour taking action if the problem is raised and subsequently not addressed.

Rights of the Affected Neighbour

It is encouraged that neighbours try to resolve the issue informally between themselves to maintain a friendly and peaceful relationship.  However, if this is not achievable, then there are a few different avenues of recourse depending on the issue.

If the issue relates to overhanging branches, then the affected neighbour has two options:-

1. Common Law Right Of Abatement: allows the neighbour to cut off the branches or roots that have extended onto their property, as long as the health of the tree is not damaged. The neighbour may or may not return the chopped branches to the Tree-Keeper.  It is important to check with your local council or tree expert when getting a quote to check if any approvals are needed.
2. Written Notice to Remove Overhanging Branches: following the formal process as set out in the Act.  The formal process may only be followed if the branches are at least 50cm from the shared boundary and the branch is 2.5m or less above the ground.  Notice may be given by the affected neighbour to the Tree-Keeper to remove the overhanging branches, which must specify a timeframe of at least 30 days for this to be done.  The Tree-Keeper is required to respond within this timeframe confirming if they will arrange for someone to do the work, when it is scheduled to be done, and a quote for the cost.  If this is not complied with, the affected neighbour may remove the branches themselves.  The removed branches may or may not be returned to the Tree-Keeper and the neighbour can claim up to $300.00 in expenses from the Tree-Keeper.

If the above options do not resolve the issue or the issue is not caused by overhanging branches as defined above, the neighbour may make an application to the Queensland Civil and Administrative Tribunal (“QCAT”) to try and have the matter resolved.  If the person occupying the property is not the owner (i.e., you are renting the affected property), you may only make a QCAT application if the registered owner of the land refuses to do so.

Ideally the situation should be resolved before it gets to this point, though we understand that this is not always the case.  In the event that you require advice regarding your rights relating to overhanging trees, please contact our office today to book an appointment.