Bitter neighbour disputes are on the rise with more people stuck at home during COVID-19 lockdowns or working from home for extended periods. Not everyone loves their neighbours, but it is important to approach any issues that arise carefully to mitigate the risk of disputes becoming an expensive legal issue, explains Commercial Litigation Associate, Georgia Taylor.
Introduction
Almost everyone has had an experience at some point in their life where they have had to deal with a “bad neighbour”. Although we choose a house and location that suits us, when we move into a property we don’t get to choose our neighbours.
Having a bad relationship with your neighbours can be an extremely stressful situation. After all, your home is meant to be your sanctuary, your safe haven, somewhere you can relax and enjoy your life. If you have a dispute on your doorstep, it can give you all sorts of headaches if it is not sorted out in the most effective way.
COVID-19 has changed the way we live and work and we are now spending more time at home. If home is not a peaceful place, being stuck at home can give rise to more disputes with your neighbours and add to your stress levels. It can become all consuming and the focus of people’s lives.
The most common neighbourhood disputes
At Attwood Marshall Lawyers, we receive all types of enquiries about neighbour disputes, with many people fed up and at a point they simply don’t know where else to turn.
The most common disputes neighbours tend to be involved in relate to:
- Dividing fences
- Overhanging trees or plants
- Retaining walls
- Water leaks
- Noise pollution
- Lifestyle or environmental issues
- Property access issues
- Children or behaviour of any of the occupants
- Dogs barking and other animal issues
- Invasion of privacy
Where does the law stand on neighbour disputes?
Neighbour disputes can fall into a number of different categories. Knowing your rights and obligations within your local council area is vital.
If you are involved in a dispute with your neighbour, it is recommended to contact your local council to find out what laws or regulations apply to your specific area and property. Information is readily available through local council websites and you can report a problem easily online.
To see what your local council has to say about a variety of neighbourhood issues, click your location below:
If you are in a position where you are concerned about your safety or the safety of your property, it is always best to contact the police in the first instance. Although police are reluctant to get involved with neighbour disputes, if the conduct crosses the line of being a criminal offence, they should be called.
What is the best approach to resolve a dispute?
The best place to start is to try to discuss the matter face-to-face with your neighbour. If you can resolve the issue at the earliest opportunity and communicate openly, this will be the quickest way to find a resolution and reduce the risk of a dispute escalating into a bigger issue, so long as you are not in any immediate risk of harm or if you are not concerned for your safety.
Face-to-face communication is always the best approach as things can easily get misconstrued via email, text message, or by writing a physical letter and leaving it in your neighbour’s mailbox.
Research conducted and published in the Journal of Experimental Social Psychology found that people were much more likely to agree to a request when they were asked in-person as opposed to in written form. Miscommunication is a much higher risk when making a request in writing as interpretation is left to the receiver, who can easily take the request out of context.
Unfortunately, there are still many instances where trying to communicate openly and honestly face-to-face gets people nowhere and it can become confrontational. Sometimes people simply have bad intentions and choose to be spiteful, ‘dobbing’ their neighbour in to the council purely to make their life a nightmare.
Then there are the people who feel they have a right to do whatever they want in their home, even if it means disrupting their neighbours. In these instances, people may not be willing to compromise and you cannot reason with them.
Then there are the neighbours that go ahead and take action, like replacing a broken fence, only to send their neighbour their ‘half’ of the bill after the job is complete, without ever having a discussion prior to replacing the fence. There are so many scenarios that play out and how you approach the matter will depend on the issue at hand, the character of your neighbour, and how comfortable you are confronting them face-to-face to openly discuss a solution.
Disputes over fences
The extent of a dividing fence can depend on where you live. If you live in a townhouse, your dividing fence may be no more than a couple metres long, however if you live on a rural property, your fence may be hundreds of kilometres in length. It will depend on these types of factors, including the economic weight of the dispute, as to how a fencing dispute may be dealt with.
There are laws that apply both in Queensland and New South Wales which outline the rights and responsibilities of property owners when dealing with dividing fences. In Queensland, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 is in place and states that adjoining owners must share the cost of a sufficient dividing fence. If one owner wants a fence that might be considered “more than sufficient”, for example they may want the best colourbond fence on the market, but the other neighbour is happy with a standard post and rail, the owner who wants the extra features would be required to contribute more to the cost of the fence to cover the additional cost. You cannot expect your neighbour to pay beyond the reasonable contribution and it is important to consider everyone’s opinion when trying to achieve the best possible outcome.
If your neighbour refuses to contribute, challenge the cost or disagrees with the type of fence required, you should not go ahead and build the fence until a mutual agreement can be made. If you cannot reach an agreement after one month of notifying your neighbour of your intended fence (in the appropriate form), you may:
- Attend a mediation to settle the dispute without legal action
- Make an application to the Magistrates Court to resolve the dispute
- Apply to QCAT or NCAT to resolve the dispute. QCAT hears dividing fence disputes which are valued up to and including $25,000 (excluding interest).
It is important to note that you cannot apply to QCAT or NCAT to resolve your dispute if you have not served your neighbour with the correct notice. Your notice may depend on the value and location of your home and the fence.
Disputes in relation to overhanging trees or plants
When it comes to maintaining trees and plants it is always best to choose carefully when establishing your garden so that you can consider any adverse effects certain plants and trees may have on your property or neighbouring properties in the future. This can help you avoid any issues from arising down the track.
Certain trees and plants may provide privacy and be attractive, however they may also impede on your neighbour’s garden, drop excessive litter on neighbouring properties, and may even damage properties with their roots, which can incur expensive costs to rectify the issue. If a tree causes damage to your property, including significant damage caused by roots, you may be able to seek damages from your neighbour.
In general, you own part of the air above your home and some of the soil below. This means that if your neighbours trees are hanging over your fence, you do have some rights to cut back branches or roots that encroach in your space. It is important however to know when and how you can trim any trees or plants in these situations as different rules can apply. If you do trim any overhanging trees and branches (with permission or otherwise) that have encroached on your property, it is not acceptable to throw the environmental litter back over the fence. In most cases it is best to obtain the help of a professional arborist who will be able to rectify the issue safely and will also dispose of the environmental litter responsibly.
If you are having an overhanging tree dispute that cannot be resolved between you and your neighbour, it is important to reference the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 to see how the Act applies to your situation. There are government mandated notices that you can send your neighbour to help come to an agreement about how the branches or plants should be removed.
If you have been unsuccessful in resolving a dispute of this nature directly with your neighbour, the next step is to go through the tribunals, such as the Queensland Civil and Administrative Tribunal (QCAT) or New South Wales Civil and Administrative Tribunal (NCAT) (when in NSW different legislation applies).
Although some disputes may seem trivial, there are many instances where there has been significant damage caused to property, particularly with issues related to roots encroaching on property, causing plumbing damage, landscape damage, and even damaging a property’s foundation. This occurs in a lot of older homes that have beautiful mature trees on the property, over time the roots of these trees can start lifting up driveways or causing other issues.
There can be an automatic assumption that any damage caused by trees outside your property are your neighbours responsibility and therefore they should pay for the damage to your property.
Where damage has been caused, it is important to get legal advice in the first instance about what may apply to your particular set of circumstances. There are many factors to consider including your property’s locality, the location of the tree, if the tree falls on council land or your neighbours, and who is the responsible owner of the tree who will need to compensate you for the damage caused.
Attwood Marshall Lawyers – helping you resolve disputes in the most efficient and cost-effective way
Sadly, we have heard of many instances that people have simply moved out of their home because they were sick of dealing with “nightmare neighbours” and relationships had broken down so much that they were no longer comfortable living in that home.
We aim to resolve disputes quickly and effectively to reduce the risk of relationships breaking down any further, and to help you move on with your life.
If you and your neighbour have been unsuccessful in communicating effectively and resolving your dispute, and you have explored free mediation options through your local council, or the options available through the tribunals, we can help you understand your rights and the best way forward.
Our experienced Commercial Litigation and Dispute Resolution lawyers will advise you from the start of your prospects of success and what to expect. Contact Commercial Litigation Department Manager, Amanda Heather, on direct line 075506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071 at any time.
