Tree problem in Cross lease

[Steven.]

Hi,

My neighbour makes a big fuss with a tree on our side of the fence because of the fallen leaves. In the title document, we both have half share of the land. The tree was obviously planted by the previous owner of his house before the cross lease was created. I have trimmed back (and down) the tree a lot since we moved in, but he still keeps complaining. Is there any clear ownership of the tree and its ‘problems’ here? Any suggestions for resolving the issue?

Thanks
Steven

[Keithw]

This is a problem with cross leases, as your title says, you each own half a share in the whole land, that means he owns a half share of "your property" & you own a half share of "his".
Think of both of you owning the whole section.
In order to do anything, you need the permission of the other.
So in theory he has part ownership of the tree that is on "Your Side" but he cannot do anything without your permission.
Unfortunately mostly it comes down to the 2 of you coming to an agreement

[donna]

Is there such a thing as a 'cross lease' agreement i.e. what is agreed to between two home owners sharing the land? e.g. you do what you like on your side of the fence and we do likewise. I suppose this is a minor body corp type agreement.

Sounds a bit bizarre that you may need to seek permission from your neighbour to landscape your back garden etc aye.

Also how does it work if one house is much larger than the other - does it mean your neighbour can come onto your property or worse still into your home?

We have one rental on cross lease and to date the only land considered to be shared is the driveway.

Cheers,

Donna

[Keithw]

Just checked my lease agreement which is for North Shore properties & it has a clause that says if the leasees cant agree, it can be taken to arbitration, so your suggestion of a "Cross Lease agreement" of what is resolved is probably quite a practical feasibilty.

This whole issue is a good reason to be very careful with cross leases, or own both sides - which I do

Interestingly in my lease, each party can inspect the building leased by the other, so your concern about the neighbours being allowed into your house is quite valid Donna !

[Ivan McIntosh]

There is nothing to stop you doing an agreement between neighbours. If you want to get it on the title, you would do so by amending the leases or adding covenants. If people actually read the cross-leases, most of what Donna referred to is already taken care of. Usually you won't need permission for landscaping, but you will need permission for alterations to the flat or building a garage, for example, together with a new survey plan and deposit of that survey plan with new leases of the amended building shapes.

Your restricted area is identified in the lease as yours...neighbour can't come onto it....but that doesn't trump landlord rights of inspection (although these are removed in some leases) and access for urgent repairs. It is all set out in the lease.

With the tree, it is quite possible that trimming or topping could be a landlord expense...shared between both parties. What does the neighbour want...for it to be cut down or just heavily trimmed? Trimming could be resolved by sharing costs, but your refusal to cut it down coud be submitted as a dispute using whatever dispute mechanism is in the lease. Suggest that you have a careful read.

[Unicorn]

My understanding of cross-lease titles is that they have common areas, such as driveways & parking, shared between the two parties & exclusive areas that that can only be used by one party.

So, the neighbour would only have a say about the tree, if it is in the common area & not in your exclusive-use area. Having said that, I like to keep good will with my neighbours & compromise if they are being reasonable.

[Keithw]

I would agree with that for unit titles, but not for cross lease, certainly not from the one I have.

standard term of lease:
Lessee's rights to exclusive occupation.
The Lessee (,) performing and observing all and singular covenants and conditions on his part herein contained and implied (,) shall quietly hold and enjoy the flat without any interruption by the lessors or any person claiming under them (,) together with the use in common with the other lesses's of flats in the said building (,)of the drives, paths, and grounds on said land and of any stairways, blaconies, and verandahs in the said building (,) for access only to and from such flats.

my additions (,) for readablity

additional term added:
That the Lessee shall not enter upon and shall not permit suffer or allow his family friends visitors servants or agents or any other person claiming under them (,) to enter upon or in any way interfere with all or any part of that protion marked "C" on the Deposit Plan xxxx
to the extent that the benefit of this covenant shall pass with the land and shall enure for the benefit of the registered proprietor for the time being of the interest as lessee of flat 2 and carport as shown on said planxxx
provided however that nothing herinbefore contained shall prevent the lessors for the time being from excercising all or any of their rights and powers of inspection and re-entry into possession and allow any other rights or powers conferred upon them as lessors unders and by virute of this lease.

[cube]

Our cross-lease has clearly defined exclusive use areas and common areas.

Haven't looked closely at the lease - maybe I should ...

[Steven.]

Thanks

Many thanks to all who have made comments and paid attention. I think I will try to reach some agreements with my cross lease neighbour, although it can be a challenge. I think if a tree belongs to its landowner(s), so does the liability for fixing 'problems' caused by it, does this sound right?

[Ivan McIntosh]

Generally speaking yes, but that will be subject to the agreements between the landowners set out in the leases and/or in any other covenants/encumbrances on the title.

[Steven.]

Thank you very much for the reply. I will post update on the matter when I get reply from my neighbour. Cheers.

[Steven.]

Here are some email conversation if you would be interested:
My Message:
I hope we can reach some agreement regarding the ownership of the tree and the liabilities. I think trees belong to the landlord(s), in this case, you and I equally are as the title says we both have half share of the land. The fence is used for defining restricted area as I can see in the title document.

Reply from the neighbour:
As I understand it, because the tree is on your side of the boundary its care and maintenance are your responsibility. If you feel that this is not correct then I recommend you get some independent advice. It is probably better if you proceed that way as it avoids misunderstandings as to what the obligations are if I just tell you.

[Bob Kane]

I'd just ignore him if I could.
Tell him that my independent advice to you is to do nothing.
Wait and see what happens next.
He's trying to bully you - don't worry about hurting his feelings.