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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.Quote:
Originally Posted by q9
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.
It might be helpful to break this problem down into two parts.Quote:
Originally Posted by artme
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?
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.