Hi all,
My neighbour stuck his head over the fence the other day to ask me if he could trim a tree of mine that overhangs his property as it is dropping leaves on his lawn. I thought that was fine until he said 'at your expense'. He also went on to say that water from my property was flooding his rumpus room but couldn't tell me what evidence he has to lead him to that conclusion. He suggested I might like to hire a plumber or engineer to find out and asked me to build a retaining wall to fix the problem.
This is the first contact I have had with the neighbour since moving into the property in November and was quite taken aback by his forthrightness.
I told him I would think about it and get back to him and he told me I could only take a couple of days to make a decision.
Now, I've checked the Legal Services Commission SA website and found the info I was looking for regarding the tree (my suspisions were correct, he can cut but limb removal is at his expense) but I cannot find anything specific to the retaining wall. What I could find indicated to me that I would be liable if I created an easement which lead to increased water flow to his property. This has not occured while I have been there. I believe it is just the slope of the land.
Has anyone else had a similar issue? Is there something I am overlooking or do you agree with my understanding of the legal liability statement (below):
WATER
Generally legal liability does not attach where water flows naturally across a boundary (as a result of rain, floods, or the slope of the land). If the flow of water is caused directly or indirectly by a neighbour's activities, the occupier may be able to take legal action to stop it happening again and for compensation for any damage caused. A drainage easement (normally registered on the land title documents) gives a person the legal authority to direct water onto another's land.
If there is no permission an occupier has a right to sue:
where the flow is intentional (that is, a trespass), for example, if a neighbour deliberately directs a hose on to the occupier's land
where the flow is caused by the neighbour's negligence and it causes damage, for example, because of the careless construction of a tank or dam, or leaving the hose on
where the flow occurs as the result of another activity and constitutes a nuisance - for example, through a fixed garden sprinkler, overflowing drains and downpipes, running taps, modification of normal watercourses, or the cementing of large areas.
Problems can also arise where neighbours share a stream, lake or other waterway and one person's activities pollute the water. A complaint should be made to the local council, which has power to control water pollution. Complaints can also be made to the local Natural Resources Management Board.
Bennetts v. Honroth
Two parties were neighbours. The defendant had erected a garage and slate paved driveway which substantially increased the flow of stormwater. The existing sump and drain were unable to cope with all the water and some flowed under the fence onto the plaintiff's land. The plaintiff claimed damages and an injunction.
The Supreme Court said the case should never have gone to court. The defendant could have stopped the excess stormwater going onto the plaintiff's property by adoption of simple and inexpensive precautions. Because he was unreasonable in not stopping the nuisance the defendant had to pay for the damage caused. An injunction was not granted though because the interference with the plaintiff's rights was trivial.
Source: Bennetts v. Honroth [1959] SASR 170
My neighbour stuck his head over the fence the other day to ask me if he could trim a tree of mine that overhangs his property as it is dropping leaves on his lawn. I thought that was fine until he said 'at your expense'. He also went on to say that water from my property was flooding his rumpus room but couldn't tell me what evidence he has to lead him to that conclusion. He suggested I might like to hire a plumber or engineer to find out and asked me to build a retaining wall to fix the problem.
This is the first contact I have had with the neighbour since moving into the property in November and was quite taken aback by his forthrightness.
I told him I would think about it and get back to him and he told me I could only take a couple of days to make a decision.
Now, I've checked the Legal Services Commission SA website and found the info I was looking for regarding the tree (my suspisions were correct, he can cut but limb removal is at his expense) but I cannot find anything specific to the retaining wall. What I could find indicated to me that I would be liable if I created an easement which lead to increased water flow to his property. This has not occured while I have been there. I believe it is just the slope of the land.
Has anyone else had a similar issue? Is there something I am overlooking or do you agree with my understanding of the legal liability statement (below):
WATER
Generally legal liability does not attach where water flows naturally across a boundary (as a result of rain, floods, or the slope of the land). If the flow of water is caused directly or indirectly by a neighbour's activities, the occupier may be able to take legal action to stop it happening again and for compensation for any damage caused. A drainage easement (normally registered on the land title documents) gives a person the legal authority to direct water onto another's land.
If there is no permission an occupier has a right to sue:
where the flow is intentional (that is, a trespass), for example, if a neighbour deliberately directs a hose on to the occupier's land
where the flow is caused by the neighbour's negligence and it causes damage, for example, because of the careless construction of a tank or dam, or leaving the hose on
where the flow occurs as the result of another activity and constitutes a nuisance - for example, through a fixed garden sprinkler, overflowing drains and downpipes, running taps, modification of normal watercourses, or the cementing of large areas.
Problems can also arise where neighbours share a stream, lake or other waterway and one person's activities pollute the water. A complaint should be made to the local council, which has power to control water pollution. Complaints can also be made to the local Natural Resources Management Board.
Bennetts v. Honroth
Two parties were neighbours. The defendant had erected a garage and slate paved driveway which substantially increased the flow of stormwater. The existing sump and drain were unable to cope with all the water and some flowed under the fence onto the plaintiff's land. The plaintiff claimed damages and an injunction.
The Supreme Court said the case should never have gone to court. The defendant could have stopped the excess stormwater going onto the plaintiff's property by adoption of simple and inexpensive precautions. Because he was unreasonable in not stopping the nuisance the defendant had to pay for the damage caused. An injunction was not granted though because the interference with the plaintiff's rights was trivial.
Source: Bennetts v. Honroth [1959] SASR 170