A property owner may not impact the health, comfort, or well-being of a neighbor. It is not a requirement for damage to have been caused for an act or situation to be deemed a nuisance or infringement of a property owner’s rights. If you plant a tree near the border of a neighbor’s property, you must make sure the border is unaffected by overhanging branches, intrusive roots, or fallen leaves.
What to Do if a Neighbor’s Tree Is Impacting Your Property
The test
In order to determine if the nuisance is valid and requires action, it must pass an objective reasonableness test. The complainant has to show that the inconvenience is interfering with their comfort and their existence based on sober and simple notions, that they are not just being unreasonable or fastidious of mindset, and that the interference is not a matter of modes or habits of living.
When applying these principles, a court will be mindful that a tree forms an essential part of the human environment. This is true both aesthetically and practically, as trees provide oxygen, pleasure, and shade. Consequently, the owner of the tree must understand that having trees means a degree of acceptance for any inconvenience. However, a court will not immediately order the removal of a tree. In fact, it will view such drastic action as the last resort.
Property impediments
Property infringements extend beyond building proximity and property lines. Trees are very much part of what can constitute an impediment when viewed through the prism of nuisance laws. Impediments include encroachment of trees, roots, leaves, and also branches hanging over your neighbor’s yard. It can be a relatively small (yet annoying) matter if leaves cross boundary lines and land in your pool or clog your gutters. However, it is no small matter if a neighbor’s tree roots under and damages boundary walls or uproots the paving in your driveway.
Recourse
It is always best if you can solve problems with neighbors in a friendly manner. However, oftentimes problems become legal disputes when failing to apply common sense. The problem with common sense for some folks is that it oftentimes affirms responsibility. The trouble with taking responsibility in these matters is that responsibility usually comes with a price tag. However, the longer it takes to resolve a problem, the more the dispute will cost. The courts are then the inevitable only recourse for a dispute settlement. The court system will take the interests of both parties into account and presumably enforce the common sense which was lacking in the first place.
Court Process
Step one, negotiation. The complainant will have to prove that friendly negotiations were useless. The next step is then for the complainant to advise the defendant that they will address the problem, and bill the defendant if nothing is done within a reasonable period.
Step three is to approach the courts for an interdict. This would compel the defendant to attend to the issue. It would also allow for a prohibitory interdict forbidding such encroachments again in the future. It is wise to remember that the burden of proof lies with the complainant and the complaint must be objectively presented with unambiguous and irrefutable evidence.
Perplexing
A tree branch hanging over your property can be the type of issue that starts off small, and ends up having you at war with your neighbor’s for years. Nobody should want that. That is why finding an amicable solution, is the best way to ensure that friendliness lasts a lifetime.
Additional Reading: Property Owners Required to Keep Trees Out of Division Fences
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