Disputes between neighbours can arise over a number of issues and in a number of situations, ranging from arguments about the exact position of boundaries to complaints about noisy children. They can involve the owners and tenants of houses, flats and home units. Disputes between neighbours in strata title units can often be resolved at meetings of the owners. There are many types of neighbours and many different kinds of neighbour disputes, but one thing they all have in common is that a polite but direct discussion about the matter can often resolve the problem. If a neighbour is doing something upsetting or unreasonable, the first thing to do is to talk about it early (before becoming angry), directly (so that there is no misunderstanding), and calmly and politely (because neighbours still have to live next door, or very close, to one another).
If this does not help and the problem continues, the next step is to try to resolve the dispute through community mediation. Services such as Uniting Communities Mediation Service offer free mediation to eligible people. Details of this service can be obtained via the Uniting Communities Mediation Service website, or by phoning 8342 1800. Mediators can often help disputing neighbours to reach an agreement and so avoid the greater problems they would face if the dispute turns into a legal battle. For more information about mediation services and how they function, see the legal system.
If a solution cannot be reached by negotiation and the problem cannot be ignored, legal action may be appropriate as a last resort. Civil actions between neighbours based on nuisance or trespass, or under the Strata Titles Act 1988 (SA), the Community Titles Act 1996 (SA), and the Fences Act 1975 (SA), as well as monetary claims for less than $12 000, are generally dealt with in the Minor Civil Action (Small Claims) jurisdiction of the Magistrates Court.
Where a neighbour dispute escalates to such a point that a person fears their safety it may be possible to obtain an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). For a full discussion of such orders see Intervention orders.
A legal nuisance involves a substantial, unreasonable and repeated or ongoing interference with the use or enjoyment of a neighbour's land (examples include smoke, smells, noise and overhanging trees).
It is for the court to decide what is substantial and unreasonable and this will often depend on the nature of the local area. For example, noisy or smelly factories will not normally be regarded as causing a nuisance if they are sited in industrial areas. Nor will it be a nuisance if the occupier who suffers the damage has put up with it without complaint for a long time, or if the occupier suffered the damage because of an unusual sensitivity (for example, unusually delicate plants). Public authorities may sometimes be allowed to cause a nuisance in the course of necessary work they perform.
The occupier who complains of what appears to be a nuisance caused by a neighbour may:
- ask the neighbour to stop the activity, or take action to prevent the nuisance
- contact a Community Mediation Service
- take direct action. If whatever causes the nuisance comes over the boundary, the occupier can remove it, for example, cutting an overhanging branch back to the boundary line. If the cause of the nuisance is mainly on the neighbour's land, the occupier may go on to the neighbour's land (only with permission) and do no more than is reasonably necessary to stop the nuisance (great care must be taken to limit what is actually done). Legal advice should be sought in advance.
- apply to a court for an order to stop the nuisance injunction or an order that the neighbour pay compensation (damages). Where there is a nuisance, the Magistrates Court can grant injunctions. However, legal advice should be obtained about what other remedies may be available.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.