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Neighbour Disputes

This article discusses neighbour disputes, in relation to nuisance, trespass, boundaries and trees, and the legal options to solve these disputes.

Types of Neighbour Disputes

Nuisance

Nuisance in relation to neighbourhood disputes refers to when there is an interference with the use and enjoyment of land.  For example, a nuisance may occur where someone has caused persistent and excessive noise that impacts a neighbour.  A claim of nuisance requires consideration of various factors and can be resolved either in or outside of work.  Some legal remedies available in a nuisance claim include damages, abatement and injunctions.

Trespass

Trespass in the context of neighbourhood property disputes refers to the interference with another persons’ property without any legal justification.  For example, trespass may occur where a person is using part of of a neighbour’s property as a thoroughfare.  Some legal remedies that may be available in a trespass claim include damages and injunctions.  In addition, there are various statutory penalties that apply when people trespass upon other people’s land.

Boundaries

Property disputes also arise between neighbours regarding boundaries between land.  For example, a boundary dispute regarding the fencing between the properties of neighbours.  Boundary disputes in NSW can be resolved in a variety of ways including making a boundary dispute application to the NSW Land Registry Services and by contacting the relevant local and state authorities.  They can also be resolve through an alternative dispute resolution method such as negotiation, mediation and conciliation.

Trees and Hedges as a source of Neighbour Disputes

Trees and hedges are a very common cause of disputes between neighbours.  Neighbours can unfortunately sometimes use trees as a means of antagonising their neighbour.  Common causes for tree and hedges disputes include circumstances where a neighbour’s tree or hedges:

  • Obstruct a neighbours view or sunlight to a window of a dwelling or any view from a dwelling
  • Causes property damage: or
  • Threaten people’s safety.

The Trees (Disputes between Neighbours Act) 2006 (NSW) provides that where trees or hedges cause any of these problems, the effected neighbour may apply to the court for an order to have the trees trimmed or removed to remedy the obstruction.  Prior to this Act, neighbourhood disputes relating to trees were resolved under common law principles of trespass, negligence and nuisance.

In the first instance, it is useful for neighbours to engage in informal discussion. Sometimes informing a neighbour that there is legislation in place that protects the rights of neighbours is enough for the offending tree or hedge to be removed or trimmed.  A formal letter from a property disputes lawyer is another method that can be used.  This can state a neighbour’s legal rights and obligations with reference to the legislation and provide a time limit for action regarding the tree. If this fails to resolve the dispute, the lawyer can engage in formal negotiation on your behalf with the neighbour and or their solicitor. If the dispute escalates, other forms of alternative dispute resolution such as mediation and conciliation can be attempted. The final course of action is to formally apply to the court for an order to have the trees or hedges trimmed or removed to remedy the obstruction, property damage or threat to people’s safety.

The lawyers at Brander Smith McKnight are highly experienced negotiators and advocates. We pride ourselves on settling the vast majority of neighbourhood disputes with either an inexpensive legal letter or through negotiation on your behalf.

How can a Property Dispute Lawyer Help?

If you are involved in a property dispute with a neighbour, there are several ways that a property lawyer can help:

Legal Advice for Neighbour Disputes

The property dispute lawyers at Brander Smith McKnight can advise you of your legal rights and obligations in relation to the neighbour property dispute.  We can also explain the various pieces of legislation relevant to the dispute.  This includes:

  • Dividing Fences Act 1991 (NSW)
  • Conveyancing Act 1919 (NSW)
  • Real Property Act 1900 (NSW)
  • Encroachment of Buildings Act 1992 (NSW)
  • Inclosed Lands Protection Act 1901 (NSW)
  • Access to Neighbouring Land Act 2000 (NSW)
  • Trees (Disputes between Neighbours) Act 2006 (NSW)

Dispute Resolution Options to avoid Court for Neighbour Disputes

This can save you time, money and stress when resolving a neighbourhood property dispute.  The lawyers at Brander Smith McKnight can explain the options that are available, the advantages and disadvantages of different options and advocate on your behalf to use these techniques. These include:

  • Informal Agreement.  The simple method of directly contacting the neighbour can be an efficient way of resolving the dispute
  • Contacting the Relevant Authorities.  Disputes involving noise or rubbish can sometimes be resolved by contacting the relevant local council or police.
  • Mediation.  Mediation is an alternative dispute resolution option where an independent mediator helps disputing parties settle their dispute among themselves.  This is done by the mediator facilitating discussion between the parties with the aim of achieving a mutually beneficial solution. Mediation is confidential and mediators do not take sides or make decision in relation to your dispute.
  • Conciliation.  This is another dispute resolution technique using an independent and impartial person called a conciliator. The conciliator can suggest options for resolving the dispute, provide relevant information and encourage the pursuit of an agreement.  Your property lawyer can help you prepare for and can represent you during conciliation. They can also explain alternatives if an agreement is not reached during conciliation.
  • Arbitration.  Arbitration is another alternative dispute resolution technique which allows disputing parties to have their dispute decided by an independent, neutral decision maker, called an arbitrator. In arbitration, the disputing parties put forward arguments and evidence that the arbitrator will assess and make a decision on. The process is private and subject to the parties’ agreement, can be confidential. It is the most formal alternative to litigation. The decision made by the arbitrator, called an award, is legally binding and enforceable. Your property lawyer can help you prepare for and represent you during this process.
  • Litigation.  Litigation is the process of resolving a dispute in court.  During litigation, both parties to the dispute will argue their case before a judge or magistrate. They will determine how to resolve the dispute based on the evidence and the arguments of both parties. The property dispute lawyers at Brander Smith McKnight lawyers are expert litigators and will advocate effectively for you in court.

Why BSM Lawyers?

We have a very strong team of lawyers with over 30 combined years of experience in property disputes.  We are proud to say that we resolve the vast majority of property disputes without the need for litigation, saving you time and money in legal fees.  The property dispute lawyers at Brander Smith McKnight are highly experienced negotiators and advocates. We pride ourselves on settling the vast majority of neighbourhood disputes with either an inexpensive legal letter or via negotiation.  If litigation is required our lawyers have outstanding advocacy experience in all tribunals and courts, including the NCAT and the Local, District and Supreme courts.

We have offices conveniently located in Sutherland, Parramatta, Wollongong and Sydney CBD.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

FAQs

chevronWhat is Abatement?

Abatement refers to the removal of the source of a property dispute.  It is a simple remedy to common neighbourhood property disputes such as disputes relating to nuisance.

chevronWhat is an Easement?

Easements are registered interests on land that grant specific rights to parties who do not own the land to use it for a particular purpose.  A common example of an easement is where a landowner has the right to access their property through the use of a shared driveway.  An easement may also exist where part of a person’s property is used commonly as a thoroughfare for pedestrians.  A property and conveyancing lawyer can identify whether any easements exist in relation to a property and also help you dispute the existence of an easement.

chevronWhat is a caveat?

In the context of property, it applies to where someone holds an interest in land and that interest can be documented and registered to be legally protected.  Caveats apply to Torrens Title land.

chevronWhat is the difference between public and private nuisance?

Private nuisance refers to unlawful and unreasonable interferences with another person’s land.  Whereas public nuisance refers to an unlawful act that generally threatens the public’s life, health, property morals or comfort.

chevronWhat is the Trees (Disputes between Neighbours) Act 2006 (NSW)?

This piece of legislation largely governs the resolution of disputes between neighbours relating to trees.  For example, where trees damage a property, cause injury or obstruct a neighbour’s view.  The property lawyers at Brander Smith McKnight are happy to advice you on the specifics of this legislation.

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