Fallen Tree Dispute with Neighbour and Insurance

dealmeister on 24/05/2021 - 21:54
Last edited 25/05/2021 - 13:49 by 1 other user

We live in the easter suburbs of Melbourne (Knox City area). And had two big gum trees in the backyard. Last year both of them dropped huge huge limbs during the storms.
One of the branches has fallen on the dividing fence with our neighbor and broken almost 10m of it. Luckily no injuries or other property damages.

I've called my home insurance to lodge a claim. And been told that a fallen tree is an act of god/nature. So, even though the tree is on my side, the agent told me that, I'm not liable for the entire damage and insurance will only pay for half of the repair of the fence + removal of the branch from the site. "And, the neighbor also should claim it from his insurance." the agent said.

So, I got a quote from a fence company for the repair and also got some tree removal guys to take care of the removal.
And when the fence guy came for the quote, he also explained to my neighbor that this is a common situation when a tree falls because of natural disasters and all the costs need to be shared equally.
Now I've organized everything for the repairs but now my neighbor is refusing the pay his share. And saying that this is my fault, not his.

I can understand his point from common sense, but also would like to show him that legally he is not right.
So, I tried to find the legal documents from Justice Victoria specifically explaining this matter, but no luck. Found a few things on law firms' websites or blogs but none of them seem to refer to Victorian law directly.

If anyone has past experience on these matters, any help to find the related document, or sharing your experience, or knowledge on the matter is much appreciated.

Home & Garden

Comments

  • SF3 on 24/05/2021 - 21:59
    +9

    How much does it cost? Can you just fix it and move on?

    Or will this be another it’s the principle…

  • Hybroid on 24/05/2021 - 22:01
    +4

    Generally speaking, a householder’s insurance will only cover damage to their property.
    Where a tree falls across boundary lines and damages a neighbour’s property, the likely
    course of action is for the affected neighbour to claim on their own insurance.

    For a landowner to be found liable, generally they will need to be aware that the tree is near the boundary and in a dangerous condition or belongs to a species which is known to drop branches: see Financial Rights Legal Centre, If a Tree Falls in a Storm Who Pays for its Removal? (Factsheet, 2018) https://insurancelaw.org.au/factsheets/.

    Insurance claims (Page 26): https://www.parliament.vic.gov.au/file_uploads/VLRC_-_Neighb…

  • resisting the urge on 24/05/2021 - 22:28
    +1

    Green bin on site
    Electric Chainsaw $99
    Cheap circular saw $99
    2m worth of 1800mm fence palings $30
    Two rails $10
    Hammer and box of nails $20

    At <$250 it seems unnecessary to make an insurance claim. In my experience claiming is painful, impacted by limited coverage and making a claim requires more effort than fixing it yourself anyway.

    • 87percent on 25/05/2021 - 07:33
      +4

      Not everyone can fix a fence

      • resisting the urge on 25/05/2021 - 08:13

        But it isn't a highly paid profession either. Put an ad up to find someone handy, licensed… it really wouldn't need to cost much. And what you pay, you save on tools :)

        BTW, if you DIY, perhaps offer to cover the labour in return for cups of tea. Perhaps a good way to restore relations with the neighbour!

  • Quantumcat on 24/05/2021 - 22:35
    -2

    I feel like insurance should pay the lot and then pursue the neighbour for his half. Like when you make a not at fault claim for your car, insurance takes care of getting it fixed and pursues the at fault party for the cost. Is this something you could negotiate with the insurer?

  • JimmyF on 24/05/2021 - 22:38
    +15

    That is correct, your house insurance stops at the fence line and the fence is always shared 50/50.

    Now that said….

    Now I've organized everything for the repairs but now my neighbor is refusing the pay his share. And saying that this is my fault, not his.

    Kinda agree with the neighbor, I mean it wasn't there tree, they did nothing wrong etc, in this case just pay their share of the 10m of fence and move on.

    Over the years we've had a few trees drop branches. Here are the outcomes.

    My back neighbors tree dropped a branch on the fence, and they repaired in etc at their cost. Was only a few meters.

    My tree at the front dropped a massive branch in the neighbors front yard and some in my yard. I told the neighbor don't worry about it and paid someone to remove it all as it was too much for the green waste bin.

    Why? It is the right thing to do.

  • MS Paint on 24/05/2021 - 22:39
    +3

    easter suburbs

    Please forward all issues to Easter Island Governor

    • dealmeister on 25/05/2021 - 15:03

      Great catch 😂😂

  • AustriaBargain on 24/05/2021 - 23:06
    +1

    Get half the tree cut up and taken away and ask the tree guys to throw the rest over the fence.

  • Logical on 24/05/2021 - 23:11
    +8

    If I was your neighbour I would also not contribute 50% to repairing a damaged fence caused by trees growing in your yard, unless of course the fence was 20 years old and in need of replacement anyway. People should be made responsible for the stuff growing in their yards and the damage caused to neighbours property. I have assisted many people going to Tribunals claiming for damage caused by their neighbours' tree branches falling on roofs and won.

    • jimbobaus on 25/05/2021 - 08:00
      -2

      This is a fence repair
      Fences are "common property" and costs are shared in all instances.

      Regardless of "who's fault" it is
      If OP took this to VCAT they would win and the neighbour would be forced to pay.

      • trex on 25/05/2021 - 11:58
        +2

        Not all instances.

        Damage through negligence

        Negligence involving fire or falling trees

        If a dividing fence is destroyed or damaged by fire or a falling tree as a result of neglect by one occupier, that occupier is liable to replace or repair the fence wholly at his or her cost (s.14).

        Other kinds of negligence

        Damages for loss can be recovered at common law where negligence of any other kind results in damage to, or destruction of, a fence.

        However, bear in mind the costs of the court process and the difficulties of proving negligence. If you cannot obtain payment by negotiating with the person or his or her insurance company, you will have to consider whether suing the person is financially worthwhile.

        Generally, it should not be necessary to take action at common law against a neighbouring occupier, because a Magistrate in determining the proportion of costs to be borne by each occupier under the Fences Act would take any negligent conduct into account and could order the negligent person to meet the full cost.

        Where there is gradual damage - from tree roots, soil etc

        If the damage you are concerned with is damage caused by tree roots, soil piled up against the fence or something of that kind where the damage may be to shorten the life of the fence over time, go to Other.

        source : https://www.parliament.vic.gov.au/archive/lawreform/inquirie…

        • jimbobaus on 25/05/2021 - 12:23
          +1

          Proving negligence is almost impossible
          even says it:

          bear in mind the costs of the court process and the difficulties of proving negligence.

          End of the day VCAT will just make it 50/50

          • trex on 25/05/2021 - 18:45

            @jimbobaus:

            Proving negligence is almost impossible

            Not really. It can be difficult but not "almost impossible" and it also depends on the circumstances of the incident.

  • Drakesy on 24/05/2021 - 23:37
    +1

    And this is why everyone is cutting down their trees,
    Risk minimisation.
    R.I.P foliage cover.

    • onetwothreefour on 25/05/2021 - 09:24
      +1

      I wish my neighbour would cut down his tree which is only a few metres from my house.

  • peteru on 24/05/2021 - 23:40
    +1

    I've called my home insurance to lodge a claim.
    …
    I got a quote from a fence company for the repair and also got some tree removal guys to take care of the removal.

    Why are you doing all this work on behalf of the insurance company? You've been paying them loads in premiums (probably for years), so it's now their job to get this sorted. They are very likely to be a lot more proficient at this than you.

    When we had property damage due to trees losing out to weather events, I called the insurance company (GIO) and asked them to deal with it. I had to provide credit card details to pay for excess at that time. The insurance company sent their contractors within 24 hours to remove the tree and make the site safe. A couple of days later the insurance company had an assessor on site and the next day I had a call from a contractor to arrange for a suitable time to come and perform the repairs. When these guys were done they organised with me a good time for the painters to pop in, get a colour match and agree on a suitable time to finish the job. I have no idea how much it cost the insurance company, but I bet it was significantly more than the excess I had to pay. The whole experience was extraordinarily smooth when compared to dealing with travel insurance companies.

  • dylo on 25/05/2021 - 07:16
    +1

    Whole act is here, have linked to relevant section.

    Had a similar problem with parents neighbours last year, quoted the act and used a standard form from here

    • [Deactivated] on 25/05/2021 - 07:40
      +1

      I think with section 9, you could argue that not pruning the tree could be considered negligence. Section 9

      • try2bhelpful on 25/05/2021 - 08:34
        +1

        Gum trees are a bit notorious for dropping branches. It is why they recommend people don’t camp under them; especially in windy weather. If I was the OP I would be discussing why the neighbour won’t pay for their half. If it is insurance excess I would be paying it for them but they might not want the claim either. It depends on what the cost is. Me, I’d cover the whole cost of the fence, for neighbourly peace of mind, and get the gum trees trimmed. It sounds like they might be a tad dangerous.

  • [Deactivated] on 25/05/2021 - 08:18

    What about if the neighbour removed the limb and it damaged the fence, who would be liable? (I think the remover)
    What about things that are not the fence?
    If the tree fell down and their house broke in half, due to a storm, would anyone be liable? (I think the tree owner)
    If the tree fell down and killed their dog/child, would anyone be liable? (I think the tree owner).
    I feel I'm going mad that it could be anyone else's fault unless the majority of the limb was encroaching on their property already.
    If they cut the limbs on their side, they need to give them to the owner of the tree. But if those limbs fall on the fence and break it, they have to pay half?
    I wouldn't let my tree's limbs overhang anyone else's property, why should they have to own a chainsaw and a ladder to cut branches if they don't have trees themselves?

  • Elppa8 on 25/05/2021 - 08:28

    So, if both neighbour and OP have the same insurer, the insurance company collects two excesses for the one event?

  • bobbified on 25/05/2021 - 08:30

    I don't know how it applies in the specific case of a tree falling over and damaging the fence, but your insurance refusing to cover you for a certain thing doesn't automatically mean that you're not personally liable for it.

  • 87percent on 25/05/2021 - 09:44
    +3

    fencing is a pain in the butt.. neighbour burnt down their garage, and the fence, when the genius decided to burn paper in an oil drum on a 40 degree day. Insurance STILL only covered 50% of the fence each

  • stratbargain on 25/05/2021 - 10:21
    +3

    I'd pay it and keep my neighbour on good terms. It's your tree. Do what's right.

  • dealmeister on 25/05/2021 - 15:01

    Thanks for all the answers.
    I also agree with most of you that just by common sense, since this is my tree, I should cover the cost.
    But the insurance says the opposite. Only pays my half regardles who is at fault.

    Another thing is, the fence was already very old and falling apart. And two years ago, just before I moved in, my neighbor wanted to renew it and got a quotation but did not have the chance to share with the previous owner. And just before a tree destroyed a piece of this old fence, he was very much keen to get rid of it and build a new one.

    To be honest, total extra cost on me due to the damage is not a big thing. May be another grand. But I feel bit annoyed that he is trying to take the advantage of the situation. I personally prefer that extra grand going into charities I support rather than his pocket :)

    • Logical on 26/05/2021 - 22:42

      in that case rebuild the fence using second hand building materials, this will ensure you replace 'like for like'!

  • brad1-8tsi on 25/05/2021 - 15:16
    +1

    These are the NSW rules. I'm sure Victoria will have a similar site.

    https://www.lawaccess.nsw.gov.au/Pages/representing/lawassis…

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