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dividing fence -tree damaged Who's responsible?

Discussion in 'Real Estate' started by handyandy, 21st Dec, 2007.

  1. handyandy

    handyandy Well-Known Member

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    Sydney Nsw
    Hi All

    Just a question about dividing fences and damage to same.

    We had a tree (small) fall over and damage one section of colourbond fence. The tree was on our side.

    Now under normal circumstance I would normally just chop up the tree and fix the panel, without concern as to the neighbours contribution.

    Eccept now the neighbour is demanding that we fix the fence at our cost as it was 'our tree'. We have already chopped up the tree but I am seeing red as far as the fence because as far as my understanding both parties are equally responsible for the fence.

    What is my real legal responsibility?

    cheers
     
  2. voigtstr

    voigtstr Well-Known Member

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    ethics..... why should the other dude be responsible for repairs, if your tree fell over... put yourself in his shoes.
     
  3. handyandy

    handyandy Well-Known Member

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    ethics out the window as soon as you start demanding :mad:

    Also have checked with the insurance and if it was large enough for insurance claim then then both parties insurance policies/companies would have been liable.
     
  4. voigtstr

    voigtstr Well-Known Member

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    Is it only me that thinks that the above contravenes the golden rule of ethics, "do as you would be done by"?
     
    Last edited by a moderator: 21st Dec, 2007
  5. handyandy

    handyandy Well-Known Member

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    I basically agree and would simply have fixed it without making any claims on the neighbour but ones the neighbour starts demanding both directly and through their managing agent then I just see red.

    Then further when I spoke to the owner there was an absolute lack of understanding that this was a co responsibility and insisted that I fix this asap at my expense. (I see even further red)

    Cheers
     
  6. samaka

    samaka Well-Known Member

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    I think you'd be much happier if you ignore what he thinks and do what you think is right.
     
  7. jrc

    jrc Active Member

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    Western, NSW
    Your tree falls onto something that is owned by one person, who do you think is responsible for fixing the damage - you or the owner of the damaged property?
    Your tree falls onto something owned by two people, one of whom is yourself, who do you think is responsible for fixing the damage - you or the coowners of the damaged property?
    If your answer to each scenario is different why is it different?
    Do you expect your neighbour to say thank you Andy for damaging the fence we jointly own I'll stump up for half the cost of repairs or Andy the fence was damaged by your tree I expect you to fix it at your expense?
     
  8. redrover

    redrover Well-Known Member

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    Get a copy of the Dividing Fences Act - it was your tree that caused the damage, so even though you would go halves with a neighbour in a new fence minus the issue of a tree, I think you are liable to fix the damage as it was your tree that caused the problem.
     
  9. handyandy

    handyandy Well-Known Member

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    As previously mentioned I spoke to my insurance just to clarify the legals situation.

    A tree falling regardless of where the tree was located is regarded as an act of god and classified as impact damage.

    With impact damage both parties are liable for the rectification. So if the damage was large enough then both parties would need to claim on their own insurance.

    This has been established through the dividing fencing act and also apparently in court so precedents have been set.

    The only reason that this has got under my skin is the attitude expressed and displayed by the neighbour who basically is demanding immediate rectification without even offering to help. As already mentioned I would have done it without even speaking to the neighbour and at my own expense but when someone try's the heavy routine then things change.

    As far as whether it is your tree. There apparently is no ownership of a tree it simply exists.

    Case in point if a substantial branch fell out of a tree and damaged your neighbours roof then your neighbour would need to claim on his own insurance.

    I had this happen recently on another property where a branch fell and pierced the lining of a pool next door. The owners had to claim on their insurance and when they went to council to request permission to trim/remove the tree it was refused. I was quite happy to have the tree removed but knew that council wouldn't allow it.

    Cheers
     
  10. DaveJ

    DaveJ Well-Known Member

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    How long has it been since the tree damaged the fence? Maybe the neighbours' frustration is due to the delay in getting the fence fixed? Maybe they just want a nice working fence for Christmas?? :rolleyes:

    I personally feel if it was a tree in my yard then i should repair the fence? :eek:

    The last thing you want is an angry neighbour....