Another tree problem.

[artme]

Earlier this year we had the neighbours remove a tree on their property tat was causing us problems in regard to the swimming pool and gutter clogging.
The resolution was arrived at through a two session hearing with a member of QCAT.

Now we have an other problem with an investment property in the Brisbane area.

The neighbouring property to the back is owned by an elderly couple who have lived there for many years and have just
let the back half of their block become an overgrown piece of bush. Trees hang across into our property and drop small limbs a
s well as copious amounts of leaves and twigs. The leaves and twigs block the gutters and the limbs present a danger to the renter's children.
One limb fell and has severely damaged the fence. This damage allows the neighbours' dogs to dig under the fence and gain entry to our property.
Apart from this the area where the trees grow is covered in leaf litter which the renter informs us is at least 150 mm deep.

The renters have spoken to the neighbour's son who simply shrugged his shoulders and asked what they expected him to do, and then walked off.
We have asked council and the fire brigade to take action on the grounds that the area is a fire hazard. The fire brigade tells us that they don't advise
or act safety issue!!!! They only fight fires!! Council shows little interest.

We sent a registered letter to the owners asking them to take action on the trees and the litter as well as repairing the fence. The letter has been
received by the owners but they have made no reply, despite us giving them a seven day time frame in which to act.

Our next course of action will be to approach the dept of Attorney General and justice and ask if they will offer to mediate. This is a free service as
we have no desire to put a cost burden on the neighbours. Failing any acton in this regard we will be forced, once again, to seek recourse through QCAT.


This whole scenario once again illustrates the inadequacies in current legislation with regard to what will become a "tree dispute". Surely a fire hazard in
an urban area should be a concern for the fire authorities. Surely there could be some means whereby a directive could be issued, after proper inspection,
for the removal of a hazard or hazards, without recourse to costly court action. I am sure we would win any case should it go to QCAT but that involves costs
which may well be awarded in our favour.

We want this resolved quickly and without extra costs or the possibility of rancor. I continually wonder about the lack of thorough thought put into legislatio
from our parliaments.

[q9]

Pretty sure in Queensland you can lop off any over hanging branches without asking or permission. When I had trees removed from my house I instructed the tree surgeons that any of the neighbours branches over the fence line were to be cut, and it was done. But it will be at your cost obviously.

[Uncle Al]

If the undergrowth happened to catch fire and subsequently burnt the damaged fence, some would call it a tragedy, but on the other hand, two jobs completed at once, assuming the fence is insured. Not suggesting anything untoward, just thinking out loud, so to speak.

Alan...

[TermiMonster]

Uncle Al,
you're that bad uncle......
TM

[ian]

Earlier this year we had the neighbours remove a tree on their property tat was causing us problems in regard to the swimming pool and gutter clogging.
The resolution was arrived at through a two session hearing with a member of QCAT.

Now we have an other problem with an investment property in the Brisbane area.

We want this resolved quickly and without extra costs or the possibility of rancor. I continually wonder about the lack of thorough thought put into legislation from our parliaments.If I recall the story around your other tree, in Queensland you are allowed to cut overhanging branches and deposit them inside the property the tree grows on. If I recall correctly, the sticking point for you was having to pay for the tree lopping.

This would appear to be a similar case, but as the landlord you probably owe your tenants a duty of care -- especially in respect to the fence and dropping limbs -- which you need to discharge BEFORE you chase the neighbours for a contribution towards the costs.

[artme]

Pretty sure in Queensland you can lop off any over hanging branches without asking or permission. When I had trees removed from my house I instructed the tree surgeons that any of the neighbours branches over the fence line were to be cut, and it was done. But it will be at your cost obviously.

Not so! Been through the hoops on this one. You can cut anything below 2.4 metres and throw it back over the fence.
No

[artme]

If I recall the story around your other tree, in Queensland you are allowed to cut overhanging branches and deposit them inside the property the tree grows on. If I recall correctly, the sticking point for you was having to pay for the tree lopping.

This would appear to be a similar case, but as the landlord you probably owe your tenants a duty of care -- especially in respect to the fence and dropping limbs -- which you need to discharge BEFORE you chase the neighbours for a contribution towards the costs.

Yes. This is a sticky question. I am not in the position to pay first and pursue later. Nor do I wish to abrogate my duty of care as a landlord.

I am waiting on the council to get back in touch with me with regard to the fire hazard.

tThis is part of the reason I am so peeved by the legislation.

[q9]

I have to admit to not really caring...what was the neighbour going to do? Sue for damages? No worries, now let's talk labour a new fence $$$.

Anyhow, maybe a good idea (not knowing contents of any previous communication) is to write a letter demanding attention, but be sure, completely crystal clear, to spell out the potential hazards and risks. If they ignore it and do nothing then you can show you've done something in the event something happens to your tenants...

Another thought is contact your insurer...

[Uncle Al]

Uncle Al,
you're that bad uncle......
TM
Yeah, I've got a bit of a strange mind, I think of all sorts of things, some practical, most not practical, some legal, some not so legal.
Lots of people have bad uncles, but as long as they have a sense of humour, then all is good.

Alan...

[Sturdee]

If which you need to discharge BEFORE you chase the neighbours for a contribution towards the costs.

But be aware that you may not be able to get any neighbour's contribution if you act without either a court order or agreement in writing.

This is the case in Victoria and probably the same in Queensland.

Peter.

[ian]

But be aware that you may not be able to get any neighbour's contribution if you act without either a court order or agreement in writing.

This is the case in Victoria and probably the same in Queensland.
Duty of care is always a bit tricky as it doesn't really get tested till something goes pear shape.

Should it need to be tested I'm not sure that, as the landlord, a file of correspondence where you have attempted to get the neighbour to abate the nuisance (the over hanging tree limbs and dropping leaves) and have the damaged fence repaired would be considered sufficient. It would be best to at least seek some legal advice on this as it could also affect your landlord insurance.

If I recall correctly, a tenant has an absolute right to peaceful occupancy for the duration of the tenancy, and, conversely, the landlord has a responsibility to maintain the premises, including any fencing, in a fit and proper state. (Lawyers will typically have a field day around the definition of "fit and proper".)

[Mobyturns]

https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/ has all the info you require regarding your rights as a neighbour and the responsibilities imposed upon the tree owner, and what actions are available to you including mediation services.

The "resolve neighbourhood disputes" tool (mid RH side of page) offers several responses from a DIY kit from the Caxton LS to other dispute resolution resources.

I only wish the QLD Gov't would promote this resource as it would prevent a lot of angst amongst neighbours and save a lot of time for surveyors, LGA staff, etc.

[Enfield Guy]

Not trying to stir up a hornets nest, but, you have a rental property from which you gain income but don't have adequate funds to perform the maintenance required for the property? Something is amiss there.I would have thought that the maintenance would be tax deductible against the income. Surely there has been a percentage of rental revenue allocated to maintenance.

Unless the property is grossly negatively geared there should be adequate return to fund planned and unplanned maintenance.

I'm not sure that the tree is the real issue.

Cheers
Bevan

[q9]

No, the issue is that an asset of party B causes a cost to party A. Parry A should have some way to either put the costs back to party B or seek relief from further damages.

[Mobyturns]

No, the issue is that an asset of party B causes a cost to party A. Parry A should have some way to either put the costs back to party B or seek relief from further damages.

Depends upon your point of view, a liability of Party B causes grief to all parties.

Unfortunately this situation is occurring all around Australia as elderly people on fixed pensions are desperately trying to stay in their own homes and not to be a burden on others. Given a different economic situation I think the elderly couple and their family may react entirely differently. No winners in this scenario, seek mediation assistance.

I had quite the opposite scenario only a few weeks ago. The tree owner is threatening a distant relative who owns a rental property with a suit for nuisance, relief etc because my distant rellie, the adjoining neighbour, lawfully notified the tree owner of his planned actions etc then trimmed the overhanging branches lawfully using a tree lopping contractor who "trimmed back to existing marks." The tree had been trimmed by a previous owner of the rental property. The tree owner is now making absurd claims for sleep disturbance, and is seeking relief for installation of blinds and an air-conditioner because they are both shift workers and now find it difficult to sleep. The situation remains unresolved and is now beyond mediation and racking up legal bills. Things can take strange turns even when you comply. Now there are counter claims for roof damage, gutters, tree trimming costs etc.

[ian]

No, the issue is that an asset of party B causes a cost to party A. Parry A should have some way to either put the costs back to party B or seek relief from further damages.Party A does have a way of recovering the costs from, or putting the costs on, Party B or of seeking relief from further damages.

It's called the law of torts and is what brings in the bread and butter for some lawyers -- and can rapidly get very expensive for all involved.

[ian]

Yes. This is a sticky question. I am not in the position to pay first and pursue later. Nor do I wish to abrogate my duty of care as a landlord.

I am waiting on the council to get back in touch with me with regard to the fire hazard.

tThis is part of the reason I am so peeved by the legislation.
It might be helpful to break this problem down into two parts.

1) repairs to the damaged fence.
As I read the link posted by Mobyturns, if YOU can't get the neighbour to AGREE that the damage is significant and requires immediate repair, then the damage may be deemed inconsequential.
And if the neighbour fails to act within a reasonable time and YOU don't repair the damaged fence, the damage might again be deemed to be "inconsequential", i.e. not requiring repair.
The time frames for "Immediate repair" and "reasonable time" may be as long as 30+ days, but might be within a few hours depending on what the fence is holding back -- wild and dangerous animals? or grass and flowers.
I think if I were sitting as an assessor, I would have a hard time agreeing that the damaged fence is in need of repair if you as a landlord have taken no steps to protect your tenant and their children from the neighbour's dogs that can now get through the damaged fence. Either the dogs represent a threat that you have a duty of care to mitigate, or they are friendly and quite enjoy playing with the tenant's kids.

I don't think you have the option of waiting for a government body to act on your behalf, because if you do you are tacitly acknowledging that there is no real problem with the fence.


2) the overhanging branches.
Trickier, but unless you can get the neighbour to agree that the trees are a problem that needs fixing, then the branches are your problem, which you are entitled to deal with, but you can only recover $300 from the neighbour until such time as a body like QCAT determines otherwise.

out of interest, what proportion of the total cost did you end up paying in respect to removing the other tree?

[artme]

The law is always a complicated thing, and quite often needlessly so.

In reply to Bevan, I expected somebody to bring this up. Without going into too much personal detail,
yes the property is negatively geared but this should have no bearing on the problem at hand.

The problem has existed with the build up of litter on the property for some years and became worse over the last 12 months or so.

The fire brigade is not interested as it is not their place to advise!!:o

The council finally returned with a reply to our inquiries and say they can do nothing as there are no by laws covering this
sort of situation!!!:o

The department of attorney general and justice has advised, over the phone, that they will not mediate and yet they made the offer
to mediate here with our neighbour!!:o

I am going to Bris in a fortnight for medical reasons and will drop in to see the property owners there and see if they will be willing to
talk since they did not reply to my registered mail letter requesting action be taken.

Even though the case here in Hervey bay was settled through hearings which were run by QCAT there is no guarantee of a successful
out come in my favour, even if i believe I have an extremely winnable case. Before a local QCAt member was appointed to, as it turned out,
basically mediate the case here, the board member originally appointed to hear the case said he was not in favour of removing trees. I felt
that that was a prejudicial statement and if theis is the mindset of even one board member then it is a case of pot luck

Vexatious claims, such as that outlined by Moby, will always be a factor to consider but I cannot see how this could occur here.

Perhaps the approach suggested by Ian will work.

I will also contact my insurer. That is a good suggestion.

Will keep you all posted.