Property problems: Persuading a neighbour to clean up a section

By senior associate GREG ALLEN and associate BRENDON GILES.

Q. One year ago my wife and I bought a residential investment property in Auckland. We have visited it a number of times and have become increasingly concerned about the state of our adjacent neighbour's property. What really worries us is that the lawns are not mowed regularly and may dry over summer and catch fire and put our property and family in danger. What can we do? What action can we take to protect ourselves?

A. There is a number of legal and non-legal ways you can attempt to resolve this problem. Depending on the seriousness of the circumstances you may wish to consider the following options:

1. Talk to your neighbour. From a practical point of view, and it may seem obvious, raising the issue with your neighbour is always a good place to start. If, like your own property, the neighbouring property is an investment property, it is possible the owners are not aware of the current state of the property and it may even be that their tenancy arrangement requires the tenant to keep the property (including the garden and lawns) tidy.

2. Contact your local council. Under the Local Government Act 2002 local councils are empowered to require the occupier or owner of any land (by giving written notice to the property owner) to cut down, eradicate and remove growth (such as broom, gorse and dry grass) and to remove or destroy accumulated refuse or flammable material from properties if they could become a fire hazard. Fire danger is a matter to be determined by the chief executive officer of the local council or an authorised officer of the New Zealand Fire Service.

You may request (in writing) that your local council issue such a notice. If the council has not issued a such a notice within one month of your letter, you may apply to the district court for an order requiring the local council to comply with your request (although the district court could cancel your request).

In practical terms, it is likely the council's first step will be to contact the adjoining owner.

If the growth or material is an imminent danger to life, property or road, the council may take further action itself.

3. Court action. The occupier of the property may wish to consider taking an action in "nuisance". Nuisance is an action that was developed by the court to protect against unreasonable interference with a person's right to use or enjoy their land. In successful cases, the court may grant an injunction (to put a stop to the nuisance) and may award damages for past interference. Unsightly long grass is unlikely to constitute an actionable nuisance itself and it may depend on other facts and/or the seriousness of the situation to determine whether this is the best course of action.

4. Enforce a restrictive covenant on the land. There may also be controls on the use and appearance of your or your neighbours' land.

While it is possible (although uncommon) for such restrictions to be contained in the district plan, there may also be restrictive covenants registered against the certificate of title for the property.

Restrictions are common on certificates of title for recent subdivisions (particularly where the developer wishes to ensure the neighbourhood being developed is of a certain quality).

Such restrictions usually limit the height of trees and fences on the property, forbid caravans and the build up of rubbish, and require owners to regularly mow and keep tidy their properties. In some cases the restrictive covenants can be enforced by the developer, but in others it will depend on the terms of the covenant itself.

The above list is not exhaustive and you should consult your lawyer about the full range of options.

* Send us a commercial property question