Our previous article discussed your rights when someone or something comes onto your property. This article outlines your rights when something outside your property interrupts your peace and quiet.
Not everyone has the right to quiet enjoyment, but every property owner has a right not to be unreasonably bothered. Let’s go over the rights of property owners.
Who’s Entitled to Peace and Quiet?
Leaseholders/Tenants
Leaseholder and tenants have an implied right to quiet enjoyment. Your right will usually be found in a covenant (which tells you what your rights to use your land are) but even if not, you still have it. Your landlord can’t interrupt you except in certain circumstances and they must take all reasonable steps to make sure other tenants don’t interfere with your ‘reasonable peace, comfort or privacy’.
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Strata Title Holders
This consists of home units, apartments, townhouses, villas and duplexes – property where you only own your ‘lot’. Strata holders have obligations to not cause nuisance to or interfere with their neighbours’ enjoyment of common property. Your local by-laws can have extra obligations, like keeping pets or smoking in common areas.
Freehold Owners
If you own the land, your interest is called freehold. Like other title holders, you’re protected by the laws of nuisance from ‘substantial’ and ‘unreasonable’ interference.
What Makes an Interference ‘Substantial’ and ‘Unreasonable’?
In 1948, tennis courts were built on land connected to a person’s property. They couldn’t sleep because the powerful floodlights from the courts peered through their curtains, so they sought an injunction. The Court gave permission for the injunction, ruling that the tennis courts could not operate between sunset and 7 am.
Examples of other breaches that were found to be nuisance include:
- smoke from a faulty slow cooker a floor below;
- flooding;
- the spread of fire;
- trees and branches encroaching into neighbour’s property;
- strong smells;
- repeated, harassing phone calls;
- noise; and
- a camera that shone a light and began recording when it detected movement in the backyard of their neighbour.
‘Mere interference’ with comfort or personal inconvenience won’t be enough to breach your right to peace and quiet. The difference is difficult to spot so speak to a property lawyer for advice.
What Can You Do If Your Rights Are Breached?
Depending on who owns the land, you can complain to the owner or a local council. If the issue continues, you can file for an injunction to stop the interference or sue for damages. A court will usually balance each party’s rights to enjoy their property without interference.
Abatement
Common law provides some protection if you try to stop the interference yourself, but the law is unclear in this area and can be different by location. For example, if your neighbour’s branches are hanging over onto your property, in all States except NSW you can remove the branches up to the fence line as long as you return the branches back to your neighbour’s land. As a general rule, you can only do what is necessary to avoid harm.
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