NSW Whose Responsibility is it to Have Tree Removed?

[Margaret Mirfin]

I rent a property and 6 weeks ago the neighbour's tree was uprooted in a windstorm and fell across our property. The landlord has flatly refused to do anything with the tree and states that it is the neighbour's responsibility to remove the tree.

We have cut off the top of the tree and piled it ready for removal but it is a very large trunk that crosses half of the backyard and we don't have the equipment to saw it up. Whose responsibility is it to remove the tree under property law?

 

[Victoria S]

It's not a black and white issue. Your neighbour is not automatically liable just because the tree was in their yard.

The law regarding your rights and responsibilities in this situation is covered generally by common law nuisance or negligence. Just because the tree is on your neighbour's property doesn't mean they are automatically liable for the tree falling in a storm. For your neighbour to be liable, they need to be aware that the tree is near the boundary and is in a dangerous condition. Insurance companies classify a strong, healthy tree blowing over in a wind storm an ‘act of God’ for which there is no liability. In this event, each party bears their own costs.

Therefore, your landlord could kick and scream and insist your neighbour is liable however they would need lots of evidence to show that the tree was dangerously at risk of falling.

Are you required to maintain your property or is the landlord? If landlord is, I would tell your landlord or real estate agent that you will hire someone to take it away and send them the invoice. If they want to try and pursue the neighbour for payment of it, that's their issue.

 

[Margaret Mirfin]

Thanks very much Victoria. I thought that was the case but it's very hard to get any clarification.

 

[Rod]

Hi Victoria,

I'm thinking there are two possible causes of actions for the tenant: First is as you say under nuisance law against the neighbour. And the second against the landlord for not providing proper full use and enjoyment of the property.

 

[Victoria S]

Nuisance still requires you to demonstrate some act or omission, so (assuming that there was no prior issues with the tree looking as through it was going to fall over) a healthy tree falling over in a storm is considered an "act of god" to which no liability is attached. If there is no liability I can't see how you can accuse the neighbour of being responsible to clean up the fallen tree in the first place simply because it was from their yard.

Quiet enjoyment clause may also be a way of getting landlord to action it.

 

[Rod]

I agree, no liability for damage. However, nuisance is a strict liability tort and just having the neighbour's tree on property in the exclusive possession of the tenant should be enough to constitute serious interference.