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Tree Roots - Who Pays For Any Damage?

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Can you sue for damage done to you by your neighbour's tree or hedge roots?

YES . . . . A Plaintiff can clearly recover for damages caused to his drains by the encroaching roots of the other neighbour.  That is clear law.  But it also accords with the “merits and justice” of such a claim. 

It would be quite unjust if a neighbour could own a tree which caused damage through its roots system yet remain immune from any form of legal liability. 

Which is the more just? -  That you suffer the damage from the neighbour’s trees or that the neighbour put right the damage caused by his trees?

Both the law as well as common justice supports the proposition that the tree owner is liable.


The New Zealand case of Morgan v Khyatt is reported in the Court of Appeal and in the Privy Council. In 2002 there was also a definitive decision of the English House of Lords case of Delaware Mansions Ltd v Westminster City Council .  


It is interesting to note that the leading judgment in the House of Lords

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Feedback/Blogs/Reviews from related topic: Brief of Evidence - A Case in Court
"Really great practical stuff!! All your civil ltigation topics are good. Mike H. Auckland. April 2007"
"I agree. Just having the documents set out helps to understand the theory of practical law. Manu G. May 2007"
"I used this topic three weeks ago and my documents looked great. helped me focus my mind, as did a number of the other civil topics. Hank. - Auckland"
Feedback/Blogs/Reviews from related topic: Brief of Evidence - A Case in Court
"My neighbour had her bag snatched in the main st of Papakura. Her insurance company will pay to get the locks replaced for her house but not for her car. I think this is extremely unfair as her car was not the target for the theft.

We agree . . . Insurances Companies are increasingly relying on small print and NOT saying at the time the insurance is taken out that a car insurance does NOT cover items pinched from inside the car, and, in this case, obviously consider that the car is not similar to the house. It is best to get your Policy and sit down with an Insurance Company Rep. and try and discuss every little thing that could arise for which you would like to have coverage. - Netlaw"

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"Great. See the other topics on Statement of Claim -Some Examples - Graeme - Tauranga"
Feedback/Blogs/Reviews from related topic: Brief of Evidence - A Case in Court
"A fabulous topic. Why are there no other sites which actually give examples. The lay person does not get to see Claims like this set out so clearly. I think there is a bit of a myth about te law which is buit up by lawyers. Please get as many examples as you can on to this topic please Netlaw . . . Graeme - Tauranga - May 2007"
Feedback/Blogs/Reviews from related topic: Brief of Evidence - A Case in Court
"My wife and I found this a valuable site. We discovered that the Court staff were not very helpful so if you are filing your own papers then you should make sure you convince them that you know what you are talking about. In the end, the Court staff realised that we knew as much as any lawyer on the topic and we won most of what we wanted. Thanks to you people at Netlaw.

G & J June 2007"

"Hi Richard
I would like to get your thoughts on a proposal I am thinking of putting to our neighbours at a Settlement Conference on Monday. They have applied for an Order to have trees removed in our property under Section 129C of the Property Law Act 1952. It looks unlikely that either party will concede so I was going to suggest that both parties agree to the Conference Judge making a decision based on the facts presented and on the Property Law Act provisions. We would agree to abide by the decision and not appeal providing our neighbours agreed to do the same. This would save the expense and time of a full Court hearing if we otherwise dont reach settlement through the Monday Conference. The outcome should be the same-we are both representing ourselves. I guess if the Judge decides an Order for removal should be made he would have to formalise this through a Court procedure in terms of the Property Law Act but hopefully not through a normal hearing. Would appreciate your comments on this approach. Has it been done to your knowledge, is it feasible, are there any fatal flaws in the idea ?
Cheers Barry C. June 2007"

"Good Morning,

Anything can be done as a Judicial Settlement Conference provided it is done "by consent". We have not heard of a binding decision being made by a Judge at such a Conference in the Civil Court but is has been done by agreement in the Family Court particularly in the urgent situations of Christmas access being arranged at the last minute and the Judge convening a Mediation Conference and both parties agreeing that the Judge can determine such access on the facts.

But there is nothing to stop you trying to persuade the other side to let the Judge make a decision the Judicial Settlement Conference. However, the Judge would have to have all of the information before him or her at the time and this will include photographs and possibly even going out to have a "view" of the site. We have long advocated that there ought to be a system like this within our judicial system, perhaps by way of a souped up Disputes Tribunal presided over by a trained but energetic and innovative legally trained Referee. But we have not got to that stage yet.

By all means, give it your best shot on Monday. Put your case forward in a very well-prepared manner and be totally objective and fair-minded. you may well find that the Conference proceeds in a way favourable view and therefore you are entitled to drop into the discussions from time to time "Well, Judge, why cannot be settled on that basis?" You might well find that the other side does settle and agree and the Judge this then able to wrap it all up with an appropriate order.

Best of luck . . . Netlaw

"Thanks Netlaw
The Judge has all the lengthy affidavits, photos etc and I agree he would really need to see the site. Will give it a shot and thanks for your prompt response and encouragement.
Cheers . . . Barry - June 21 2007

"Bloody, bloody, bloody helpful. Worth the $45 alone!!! I threatened my neighbours (nicely) with a letter and a bundle of the documents you suggested and they agreed to take down two trees. No lawyers involved. You guys empowered me and I did it myself, successfully. Jim D. Blenheim"
"Thanks Netlaw,
You really gave us the tools to go into court and have a confidance that we were doing the right thing. After 4 court sessions we agreed with our neighbour on the work to be done and a consent order was issued by the court. The trees are now gone and we can look forward to sunlight on our house in the winter. You are helping average joe kiwi to get his rights.
Thanks, Matt - Taupo, February 2008

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