Property Disputes

Resolving Property Disputes with Your Neighbours

Neighbours often disagree on a range of topics when it comes to replacing a boundary fence, such as:

• The suitability of the existing fence;
• The type of replacement or new fence being proposed including the materials to be used, colour, and height of the fence;
• The positioning of the fence;
• When, how, and by whom the works will be carried out; and
• The cost of the fence.

You should first make reasonable attempts to reach an agreement to resolve the matter with the other party. We encourage the parties to engage in mediation using the Community Justice Centre to resolve their differences which is a free service.

If an agreement cannot be reached, then one party may serve the other with a Fencing Notice in accordance with the Dividing Fences Act 1991 (NSW). This initiates a formal process where the parties set out the outcome they want and the reasons. This can be a complex and strict process and we can assist to ensure your notices comply with the legislative requirements.

Sometimes the issues cannot be resolved. Our experienced lawyers can assist in attempting to resolve the matter directly with your neighbour or by representing you in court proceedings seeking an order of the Court.

Resolving Property Disputes About Trees

Our experienced property lawyers can assist you if you wish to have a tree or hedge on the neighbour’s land pruned or removed, or you are seeking compensation for damage to your property caused by a tree on a neighbour’s land. This includes action against Council and other authorities.

You must first make reasonable attempts to reach an agreement to resolve the matter. We encourage the parties to engage in mediation using the Community Justice Centre to resolve their differences.

If you still cannot resolve the dispute with your neighbour, then we can assist by making an application for orders in the Land and Environment Court. Some examples are for orders to:-

• remove a tree, grind or poison its stump, remove offending roots or prune overhanging tree limbs;
• pay for roofing work and replacement of tiles damaged by fallen tree limbs;
• pay for repair/replacement costs for sewer pipes, cracked walls or paths badly damaged by tree roots;
• pay for installation of a root control barrier;
• prune the trees and maintaining them at a certain height, width or shape;
• remove the trees and replace them with trees of a different species;
• authorise entry onto the land to carry out the orders; and
• pay for the costs of the work.

Generally, orders for the recovery of legal costs are not granted however under some circumstances, an application for costs may be made separately to the Court. Non-legal costs of preparing the application and other costs such as expert fees are generally borne by the parties.

We can also assist you in responding to complaints or action by a neighbour relating to trees on your property.

Dealing With Nuisance Neighbours

Private nuisance can occur in two ways:

1. Material physical damage to land or property; or
2. Interference or disturbance with the use or enjoyment of land.

Examples of nuisance include, but are not limited to:

• Encroachment;
• Water run-off and drainage issues;
• Noise including animals and air conditioning units; and
• Environmental concerns such as smoke, dust, sewerage, odours, vermin and waste.

You should first make reasonable attempts to reach an agreement to resolve the matter with the other party. We encourage the parties to engage in mediation using the Community Justice Centre to resolve their differences which is a free service.

Our experienced property lawyers can assist you in attempting to resolve the matter with the person causing the nuisance. If a resolution cannot be reached, we can provide you with advice and representation to stop the nuisance and recover damages (if any) by an order of the Court.

Resolving Property Disputes About Encroachment

This includes, but is not limited to walls, overhangs and part of a building/structure that is above or below the ground. An example of an encroachment is when an individual decides to build a garage and its roof ends up overhanging across the neighbour’s property.

Relief of an encroachment may include the following:

• Compensation to the owner of the property affected by the encroachment;
• Transfer or lease of the subject land to the encroaching owner whereby they pay consideration; or
• The removal of the encroachment.

You should first make reasonable attempts to reach an agreement to resolve the matter with the other party. We encourage the parties to engage in mediation using the Community Justice Centre to resolve their differences which is a free service.

We can assist you in resolving the matter by engaging suitable experts to prepare the plans required to show the encroachment and drafting and registering the required dealings.

If a resolution cannot be reached, we can provide you with advice and representation to resolve the encroachment by an order of the Court.

Resolving Property Disputes About Adverse Possession

This can occur even if someone else believes they have title to the land.

Adverse possession commonly occurs when a fence or building has extended past its boundary. In this situation, the neighbour may have adverse possession over the land. This may sometimes only be the matter of a few centimetres, but when it comes to valuable property that can be a significant amount of money.

Adverse possession can also occur where part, or all, of the land has been abandoned and you can demonstrate that you have had the use and enjoyment of the land and have maintained the land for a prescribed period of time.

Our lawyers have experience in helping clients work through adverse possession claims and defending property rights and values.