A LEGAL POINT

Bay of Plenty Beacon, Volume 13, Issue 41, 14 January 1949, Page 7

A LEGAL POINT

Who Owns The Shade Of A Tree?

Many farmers will have wondered what action they could take against adjoining landowners whose trees shade their property. ing numerous enquiries, the question has been taken up by the Federated Farmers of New Zealand who have sought a legal opinion. The Bay of Plenty organiser in Tauranga (Mr E. J. Vosper) has been informed that the occupier of land has no right or remedy against an adjoining occupier whose trees shade his land unless he has acquired a right of access of light by deed or by transfer from the owner of the adjoining property. The legal opinion given Federated Farmers of N.Z. (Inc.) follows: (1) Except as herein provided, no tenement shall become servilent to any other in respect of the access of either light or air, and no person shall have or acquire by prescription, grant, or otherwise any claim or right to the access of light or air to any land or building from or over the land of any other person. (2) Conditions precedent to grant of right of light or air, a, grant of the right of access of light or air made any time after the commencement of this act may be enforced if 7 such grant—(a) Is made by deed, or by an instrument in an appropriate form provided by the Land. Transfer Act 1915, as the case may require. (b) Is duly registered Within 12 months from the date of the execution thereof by the grantor. (c) Limits and defines accurately the area or parcel of land on, to, or over which the uninterrupted access of light or air is intended to be provided for. (4) Effect of Grant. (1) Every such grant shall, if duly registered within the period defined in the last preceding action, confer upon the owner for the time being of the dominant tenement such rights as may be therein defined in respect of the access of light or air: and such right shall endure, unless otherwise provided, notwithstanding that any building erected upon the dominant tenement may be altered or destroyed and replaced by other buildings. (2) The erection of buildings of any height not encroaching upon the land are limited and defined as aforesaid shall not be deemed to be an infringement of the right or a derogation from the grant. In brief, therefore, the occupier of land has no right or remedy against an adjoning occupier whose trees shade the land of the. firstmentioned occupier, unless he has acquired a right of access of light by deed or by transfer executed by the owner of the adjoining property, such grant must be duly registered within 12 months from the date of execution by the grantor. The grant must also limit and define accurately the area or parcel of land on to, or over which the uninterrupted access of light is intended to be provided for.