Remember that 2013 Bank SA commercial where a new homeowner marvels in his new backyard, “I own a tree!”?
There is something pretty special about owning a property with a tree (or trees) – they provide cooling shade, fruit, privacy and add significantly to the character of a home, and value of a property.
On the flip-side, trees can sometimes drop limbs on houses, cause root damage to neighbouring paving and, in some cases, you may not actually be allowed to lop or remove them.
So, what do you need to know before you buy a property with a tree?
Whether you are planning to buy a property in a built-up suburb or a rural acreage, there are a few vital things to consider and possibly seek advice on, before you enter into a contract:
Does my insurance policy cover any damage caused by trees?
When you enter into a contract to buy real estate in South Australia, the property is at the risk of the purchaser from the date of the agreement (provided the Vendor uses the land and the included property with reasonable care). It is your responsibility, therefore, to insure the property against any damage which might occur before settlement, and for any damage the property and its fixtures (trees included) may cause.
Where the property includes trees, it’s a good idea to raise this with the insurer the ensure any damage caused to the property or neighbouring properties is covered before and after settlement.
Is the tree currently (or likely to be) the subject of any disputes, insurance claims, or an order from the local Council?
It’s important to understand the implications of buying a property with trees on it, as they can often be the cause of neighbourly disputes, insurance claims and even court action. Trees are considered to be part of the land and belong to the owner of the land.
The owner of the land on which the tree grows may therefore be considered liable for any damage caused. If there is an ongoing dispute and a property is sold, then you as the new owner may inherit the dispute, or at the very least be held liable for any damage caused by the tree once you take ownership.
If you can see any trees on a property, especially in a township or built-up area, ask the real estate agent or owner of the property if the property is the subject of any action from neighbours, the local Council, any Government authorities, or any insurance claims. If the answer is yes, seek legal advice about what that could mean for you before you enter into a contract to buy the property.
(The Legal Services Commission of SA fact sheet ‘Trees and the Law’ has more information about potential legal issues surrounding trees)
Will I want to remove or lop the tree in the future?
Sometimes you might want to buy a property which has a tree that needs to be removed or cut back. Trees provide significant benefits to the entire community, and therefore have been afforded protections in some instances. Just because a tree is on your property, doesn’t always give you the right to lop, remove or even damage them.
“Just because a tree is on your property, doesn’t always give you the right to lop, remove or even damage them.”
In metropolitan Adelaide, Adelaide Hills Council townships and parts of the Mount Barker Council, for example, you’ll need to obtain development approval to carry out works on regulated and significant trees – which are trees with a trunk circumference of two metres or more.
If there is a tree on the property which you think may need to be cut down or lopped in future, and you’re not sure if it might be protected, get advice from the Council of the area before you sign a contract, or before the cooling off period expires. It’s also a good idea to factor in the cost of a qualified arborist’s services, and removal of large trees can be costly.
Is there native vegetation on the property?
Native vegetation refers to any naturally occurring local plant species that is indigenous to South Australia, from small ground covers and native grasses to large trees and water plants. It also includes naturally occurring regrowth and in certain circumstances, dead trees. Native vegetation in most parts of South Australia (except parts of metropolitan Adelaide) is protected by the Native Vegetation Act 1991. If you want to clear or remove native vegetation you need to comply with certain requirements or apply for approval (which can take several months). The Department for Environment, Water and Natural Resources sets out which activities (from sub-divisions to dam installations) require approval to clear native vegetation, and some which are exempt. See the full list here.
Is there anything registered on title affecting vegetation on the property?
In some instances, there may be an agreement or covenant in place to stop you removing vegetation from a particular property specifically, such as a Heritage Agreement, and this is important to know before you purchase a property.
A Heritage Agreement is a legal covenant between a landholder and the Minister for Sustainability, Environment and Conservation that permanently protects a special natural feature. The agreement is entered into voluntarily and binds current and all subsequent landholders of that title in perpetuity. That means you, if you purchase the property.
The Heritage Agreement is registered on the title of the land. A Heritage Agreement ‘Memorandum of Agreement’ document contains information on the location of the protected area, what can and can’t be done on the land, and the landholder’s and the Minister’s responsibilities.
The owner of the property must provide you with a copy of this agreement, and this is usually done during the cooling off period. Ensure you have your conveyancer check this document thoroughly and explain the impact this may have on your enjoyment of the property.
You can discuss these questions with your conveyancer, who will be able to refer you to the relevant local and State authorities for more information.
Connolly Wilson Conveyancing’s team of registered conveyancers are South Australian experts in the legal transfer of interests in real property. The advice on this website is general in nature. We recommend discussing any planned property dealings with us to ensure all relevant details have been considered. You can chat to one of our friendly conveyancers by getting in touch today.