March Hare madness: tree branch disputes can now crash residential contracts

Undeterred by the world-beating PAMDA fiasco that has chewed up over $2 billion in wasted cash and resources from Queensland real estate agents and consumers, government has intruded once again into the real estate sale process to impose yet another disclosure requirement that allows buyers opportunistic termination rights any time up until settlement.

This time the further lurch towards regulatory insanity concerns tree branches and shrubs.

The proposition in the Neighbourhood Disputes Resolution Act 2011 (NDRA) that “a tree-keeper is responsible for the proper care and maintenance of the tree-keepers tree” can hardly be cavilled with. Moreover, our tree-keepers – which likely includes you good reader – are “responsible for cutting and removing any branches of the tree that overhang a neighbour’s land”.

In short and despite the statutory command that neighbours “are encouraged to resolve the issue informally”, a dispute process – that ultimately leads to the Queensland Civil and Administrative Tribunal (QCAT) has been dreamed up to adjudicate differences and make orders, including for example for the obtaining of a report by “an appropriately qualified arborist”.

NDRA s 83 mandates – as from November 1 – that “a person selling land affected by an application or order must give to the buyer a copy of the application or order before the buyer enters into a contract of sale of land”.

If the necessary documents are not given, in cases where the seller was aware of the QCAT application or order, “the buyer may terminate the contract at any time before the contract settles by giving a signed dated notice of termination to the seller or the seller’s agent”. If the seller was not so aware or had a “reasonable excuse”, the buyer’s only remedy is to sue the seller after completion for the cost of the necessary tree or shrub lopping.

Have we fallen down a rabbit hole? Is this the mad hatter’s tea party?

If you are not yet convinced of the absurdity of this “legislation” consider the following:-

• The law requires QCAT to establish an on-line register of tree branch orders searchable at no cost. At this stage NO orders are disclosed;
• The on-line register does not include tree branch applications (which also must be copied to buyers) and there is NO convenient mechanism for searching those. A $14 fee is payable and  search results may take days to be received;
• The informal neighbour-to-neighbour process law only covers branches that are less than 2.5 m above ground level (ie shrubs and large bushes). The informal process can only be engaged once annually and the maximum cost the tree-keeper can be asked to contribute is $300.
• For branches higher than 2.5 m, QCAT may only rule if the tree may cause serious injury or damage; or if there is “substantial ongoing & unreasonable interference with the use and enjoyment” of the neighbour’s land.
• For large tree obstruction of views from a residence, the obstruction must be “severe” and not have existed “when the neighbour took possession of the land”. Obstruction of sunlight through a window must also be “severe” to qualify;
• Where the Seller does give a copy of any NDRA application or order to the buyer, the buyer automatically becomes party to the QCAT dispute with the neighbour.

Contract and forms provider, ADL published its revised presentation procedure and residential contract forms on the start date, November 1. Carter Capner Law’s revised residential contract assembly and presentation flowchart has also been updated and can be downloaded at any time.

The REIQ has notified that it has pushed back the revision date of its contract forms to December. Agents using REIQ stationery should in the meantime, take particular care not to overlook this new March Hare mandate.

While the likelihood of tree rage is small, agents will need to consider the possibility for every property they list and on the occasion of  every buyer offer.

So there we have it – tree branch populism has imposed, not just absurd legal obligations for trivial issues, but another trip-wire process that adds overhead, increases complexity and is sure to tax agents and consumers both, many more millions in disputation and compliance costs.

Tweedledee, Tweedledum.