D denied liability. There is an obligation upon the defendant, once aware of the potential problem, to do what is reasonable to address the issue; this is likely to go beyond regular preventative pruning standards and will be judged on the facts of the matter. Clearly I do not have the ability or the money to deal with this. We are committed to delivering the best service to our clients. Nuisance Trees: Encroaching Branches and Tree Roots Tensions mount when a boundary tree becomes a nuisance to a neighbor on one side of the boundary and not the other. In this case, the Judge found that the test of foreseeability is not a subjective test depending on the particular defendant but it is an objective test of what ought to have been known by a ‘reasonably prudent landowner’. Trees add structure and drama to a garden but their size and potential to cause nuisance or damage means they can sometimes be a worry. The local authority had been put on notice of the potential damage as a neighbour made a claim in 1996 and the authority had carried out tree reduction works in 1998. The damage was therefore reasonably foreseeable and the authority had a duty to take appropriate action. As discussed in our article on nuisance, property owners have certain duties to maintain and utilize their property so that it does not constitute a nuisance for either other property owners nearby or the public. The recent case of Khan & Harrow Council & Another (Ramsey J handed down his judgment on 3 September 2013), which concerned damage caused to a property by tree roots, considered when a person will be liable for damage caused by roots from trees on their land. Whilst Mrs Kane admitted that her hedge and oak tree had caused damage to the Khans’ property, she argued that such damage was not reasonably foreseeable to her as an ordinary private owner of domestic property. In fact, the authority planned a four yearly programme of reduction in the crowns of the offending trees but failed to implement it. There is no requirement in law to keep a hedge trimmed or to prevent trees spreading over a boundary. You can contact your Council to find this out. 23/10/2013. Prevention is always preferable to cure and, if they ignore you, you have additional evidence for the subsequent court case. You can ask the court to order the owner to prune or remove the tree. The hedge was very close to Mr and Mrs Khan’s property and dominated that side of the property. I am disabled, on benefit, female and 64 years old. However, whilst there is no obligation to prune trees, if branches or roots encroach on to neighbouring land, the Courts have regarded them as causing a nuisance, in the legal sense, even if no damage is caused. An injunction is used to stop the nuisance by the appropriate method. Understanding UK law relating to trees can help everyone grasp the rights and responsibilities of tree ownership. Tree roots and claims in nuisance. The legal theory is that the dangerous tree is a "nuisance" because it is unreasonable for the owner to keep it and it interferes with your use and enjoyment of your property. © Warner Goodman LLP. The applicant had subsequently formed the opinion that the respondents’ trees and the trees’ root systems were causing damage to the wall, and were constituting a nuisance in that leaves were falling into the applicant’s swimming pool, blocking the applicant’s gutters and obstructing sewage systems. You must tell your neighbour in advance if a tree … This includes the branches and the fruit of any tree or shrub. However, in analysing the facts, the Judge found a reasonably prudent landowner would have been aware of the real risk of damage to neighbouring property by the cypress hedge. Even if its branches or, worse still, its roots have begun to grow over or into a neighbour’s territory, it belongs to the landowner where the tree was originally planted. If your neighbours have trees close to your buildings you should also consider carrying out a risk assessment and putting your neighbour on (written) notice of your concerns. The best advice is to try to work out the problem in a neighborly way, instead of taking your case to court. A prudent land owner will arrange regular surveys of such trees, preventative works, and ensure that their insurances cover damage to their neighbours caused by the roots of their trees. The onus is on the claimant to prove that the tree roots had materially contributed to the damage to the property however, it does not necessarily have to be the sole cause of the damage. According to The Grumpy Gardener, “Its roots are infamous for clogging water lines and breaking sidewalks. Judgment was given in favour of Mr and Mrs Khan for the damage caused by the cypress hedge. You can only trim up to the property boundary. The duty of care arising from nuisance in the context of tree roots, does not arise unless and until the tree owner has (or ought to have had) knowledge of the existence of the problem and the danger it poses. In the case of Robbins v Bexley LBC [2013] a landowner’s buildings suffered damage in 2003 and 2006 due to tree roots from the adjoining local authority park. COVID 19 - what does it mean for commercial tenants? You can learn more detailed information in our Privacy Policy. The Theft Act 1968 makes it a criminal offence to take wild flowers, fruit and foliage from any plant if it is sold for commercial gain. Click here for a full list of Google Analytics cookies used on this site. It is well established law that an owner of land can be liable for damage caused by trees located on that owner’s land when the roots of those trees encroach upon the land of neighbouring properties. For instance, if the tree that is alleged to have caused the damage is several hundred metres away, it would be unreasonable for the claimant to seek damages for the cost of underpinning where repair for the damage, insertion of a root barrier and regular pruning would be sufficient. It is generally best to discuss your concerns with the tree owner beforehand, but under established ‘common law’, you should be able to prune branches and roots that grow over your boundary, with or without the owner’s consent. It is generally best to discuss your concerns with the tree owner beforehand, but under established ‘common law’, you should be able to prune branches and roots that grow over your boundary, with or without the owner’s consent. They said, among other things, that roots will not damage drains but they can grow into drains through existing cracks caused by other means. Any claim for damages must also be reasonable. It should be noted that the nuisance “continues” from the previous owner of the property on which the tree is situated, to an incoming owner, provided that the above two-fold test is satisfied. Registered Office: Portland Chambers, 66 West Street, Fareham, Hampshire, PO16 0JR. A duty of care for the tree owner to do what is reasonable in the circumstances to prevent or minimise the risk of interference with or damage to the property of his neighbour, is established when the following is satisfied; a) The tree owner knew of, or ought to have been aware of, the encroachment; b) There was a reasonably foreseeable risk of damage to the property or enjoyment of it, as a result of the encroachment. and is not intended to address the specific circumstances of any particular individual. The tree belongs to the person upon whose land it has originally grown. Instead, a proportionate response is expected which may include pruning and pollarding trees that have been identified as potentially being an issue. Again, there is a process to go through to prove the cause of the damage, and the extent of that damage. This even applies to windfall apples etc. Where the branch or root of a tree comes onto a neighbour's land, a nuisance situation exists. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article. However, falling leaves and fruit still belong to the owner of the tree or shrub, the law does not require the owner to come and sweep up the leaves or pick up the … This fast-growing tree has a root system that will tear up your yard in no time. Did the tree roots cause the damage to the neighbouring property? A Perennial Problem: Tree Root Nuisance Print publication. We support the key sectors of the region- rural, tourism, food & drink, energy, mining & minerals. In contrast the oak tree lacked any particular feature (such as position or height) that would put a reasonably prudent landowner on notice of the risk it posed to neighbouring property. Tree branches and roots growing over the boundary are not trespassing in the legal sense. In addition, the risk must be one which a reasonable person in the tree owner’s position would have regarded as a real risk (i.e. You should therefore return the roots to the owner of the tree or obtain their consent for disposal. 2 Nuisance trees 6 2.1 Damage by tree roots—Law Lords ruling 7 2.2 Dangerous trees 7 Duty of care 7 Local government powers 9 This information is provided to Members of Parliament in support of their parliamentary duties . Ben Jones is a partner in our property disputes team. In 1940, the case of Butler v Standard Telephones and Cables was one of the first to deal with the subsidence issue, and it was ruled that the line of poplar trees grown on the Company’s … The law about neighbours' rights and responsibilities for trees is covered by the common law of nuisance. To make a claim against your nuisance neighbour for tree root damage, it has to be proven that the damage was caused by the encroachment of tree roots and that the owner of the tree breached the ‘duty of care’ owed to the neighbouring land owner. Last updated: Considering that breach of duty brings us to the thorny issue of foreseeable risk and the recent cases of Robbins v Bexley LBC [2013] andKhan v Harrow LBC & Kane [2013]. If the roots of a tree situated on a neighbour’s land have caused damage to your property, then the owner of the tree can be liable for the damage under the law of nuisance. In Berent v Family Mosaic Housing [2012] EWCA Civ 961, [2012] BLR 488 the Court of Appeal affirmed that disputes relating to damage to property alleged to have been caused by tree roots were to be decided by the application of the general law of negligence and nuisance. Your choice regarding cookies on this site, Equity release, transfer of equity and re-mortgaging, General Data Protection Regulations (GDPR), Commercial Litigation and Dispute Resolution, Managing your affairs and Court of Protection, Five key changes to Employment Law in 2021, Common misconceptions in Construction Law, COVID-19 and the impact on commercial landlords. Click here for a full list of third-party plugins used on this site. Third-Party cookies are set by our partners and help us to improve your experience of the website. It is probably for this reason that many disputes arise in the first place. Tree roots may affect neighbouring land irrespective of whether the roots themselves encroach across the boundary of that land. Mrs Kane had a large cypress hedge on her property as well as an oak tree. A reasonably prudent landowner must be aware of the risk and his or her duty to take appropriate action. The legal reasoning behind this is that the overhanging branches are a ‘nuisance’ and a nuisance is an ‘unlawful interference with the use or enjoyment of your land’. D denied the tree constituted a nuisance or a hazard. Getting to the root of the problem – tree roots and nuisance claims, Employee Dismissal and Settlement Agreements, Commercial leases for landlords and tenants, Incorporations, company secretarial, and governance, Business Owners Disputes and Exit Strategies, Opening Hours for Christmas and New Year 2020, Minority vs majority shareholders – Know your shareholder rights. Domestic tree owners defending tree root subsidence claims commonly argue that they are not liable because the damage was not reasonably foreseeable to them – i.e. This case highlights the fact that a tree owner will not escape liability simply because they are genuinely unaware of the risk posed by tree roots. Authorised and Regulated by the Solicitors Regulation Authority (SRA 463470). Some cookies are essential, whilst others help us improve your experience by providing insights into how the site is being used. Liability for damage caused by tree roots Where tree roots cause damage to a neighbouring property, the owner of the tree can be liable, under the law of nuisance, for such damage. The first thing you will need to do is check whether the tree is protected or subject to an environmental overlay. You could file a nuisance claim, and if the court finds that the true is a nuisance, the court may order the tree removed. 5 They are legally a nuisance . As they had failed to do so, they were liable. Claims for damage resulting from tree roots are brought in nuisance rather than trespass, even though the tree roots will be encroaching on the neighbouring land. Allowing tree roots to encroach on your neighbour’s land constitutes common law, private nuisance. This…, December 22, 2020 7 The law of nuisance is essentially about balancing interests in cases of con icting land use. A tree or shrub belongs to the ownerof the land on which it grows even if its branches or roots go over or under adjoining land. Duty of neighbours in tree root subsidence cases. The applicant applied for an urgent interdict to have the trees cut down. Authorised and Regulated by the Financial Conduct Authority (FCA 464973), Warner Goodman LLP is a limited liability partnership. Ownership of the tree roots once they have been removed The owner of the land on which the tree grows remains the owner of the tree roots even after they have been removed. July 1, 2020. To make a claim against your nuisance neighbour for tree root damage, it has to be proven that the damage was caused by the encroachment of tree roots and that the owner of the tree breached the ‘duty of care’ owed to the neighbouring land owner. they were unaware of the risks that their trees posed and they could not have foreseen that their trees would cause subsidence damage to a neighbouring property. The Land Registry has this week confirmed that it will start accepting electronic signatures on…, Cornwall Council proposals for the Saints Trails multi-user highway development are progressing at a pace.…, The opening hours for our offices over the Christmas and New Year period for 2020…, Many people don’t realise that since 6 April 2012 new employees have to work continuously…, When holding shares in a company, it is vital that the shareholder fully understands what…, What will the impact of Brexit on business be in the short and mid-term? The timing of the risk management will be taken into account; tree owners should not be expected to remove all trees on suspicion that a small number of them may cause damage. Clicking the Accept All button means you are accepting analytics and third-party cookies (check the full list). On the 25th October the House of Lords delivered a judgement in relation to tree roots and the liability in nuisance of the owner of the trees. In order to avoid liability, the tree owner must be aware of the problem and take appropriate action. Its weak branches fall in storms. Get specialist help from a tree surgeon if the roots of your neighbour’s tree are affecting your home and garden. We work together as a team to give clients more than they expect. Once again, the reasonableness of the steps that have been taken will be dependent upon the degree of potential damage, the state of the tree etc. Tweet. The law in relation to claims alleging damage from tree roots previously centred on the House of Lords decision in Delaware Mansions Ltd v Westminster City Council [2002]1 AC 321. The tree is well over the roof of my bungalow, about 10 feet and is brushing on the tiles and against the chimney which will soon be causing damage.The tree and branches are too high up to lop off so this would require a tree surgeon. In the Court of Appeal, the authority claimed that, even if the plan had been implemented, it would not have prevented the damage in 2003 and 2006. It should Looking first at the facts of Khan v Harrow & Kane, Mr and Mrs Khan owned a house next door to Mrs Kane. Your liability exists … The risk is particularly relevant to owners of industrial parks and agricultural land with trees on or close to the boundaries. You can cut them yourself but you must try to limit the amount of damage to the tree, which can be difficult to do. If you fail to do so, your action will amount to theft. In most instances, and unless the tree is a The tree owner has been given notice of the damage being caused. If damage has occurred, the usual course of action would be to notify the tree owner in order to enable them to take remedial action. The technology to maintain this privacy management relies on cookie identifiers. Don’t grab the axe just yet. The law of nuisance may provide several remedies depending on whether the tree has caused, or is likely to cause, actual damage or loss. You also have a legal duty, however, to take ‘reasonable care’ whilst undertaking the works, and you may be liable if you damage your neighbour’s tree, or cause it to become unstable. When you can trim hedges or trees You can trim branches or roots that cross into your property from a neighbour’s property or a public road. In determining whether the presence of tree roots constitute a nuisance and potential grounds for a claim, the following test set out in the leading case of Delaware Mansions v Westminster City Council [2001] should be applied. You can sue the owner of the tree for damage caused to your property in the last 6 years, but only if : 1. Not only can tree roots directly damage underground structures but also, in altering the water content of the surrounding soil resulting in ground instability and subsidence, they may indirectly damage property on the surface. To discuss this article or any other property disputes matter call 01872 265100 or emaildrt@stephens-scown.co.uk for an informal discussion. If you have any concerns about the legal aspects of tree root damage you can contact Helen on 02380 717717. We use cookies to optimise site functionality and give you the best possible experience. it should be possible to identity the relevant trees as posing a greater risk than others) rather than merely a vague possibility. If you have a neighbour’s tree hanging over your land, you can: exercise the common law right of abatement—your right to remove overhanging branches and roots to your boundary line; decide whether to return the lopped branches, roots or fruit to your neighbour, or dispose of them yourself. It should be noted that the nuisance “continues” from the previous owner of the property on which the tree is situated, to an incoming owner, provided that the above two-fold test is satisfied. Most cities have ordinances prohibiting property owners from keeping dangerous conditions on their property. Damage caused to property by tree roots is a problem often encountered by land owners, occupiers and developers. You are therefore, technically exercising the self-help remedy of ‘abating a nuisance’ by cutting the offending branches off. By pressing send and providing your details you are agreeing to our Privacy Notice. The tree may constitute a nuisance, by interfering with your use and enjoyment of your own property. Because tree roots carry on growing they can cause a " continuing Nuisance ". Applications for payment, Payment Notices and Pay Less Notices in construction projects, ICO Update - Important information for employers regarding Data Subject Access Requests, 46 Basepoint Business Centre Waterlooville. Registered in England number OC 325046. On the facts, the Judge found that Mrs Kane did not have actual knowledge about the risk of damage to her neighbour’s property from her hedge and tree. The Court held that was not the relevant test. This decision repeated the historical rule of law that encroachment by roots is a nuisance for which damages will lie if damage to property is caused. Removing or resetting your browser cookies will reset these preferences. It was held in Delaware Mansions that the tree owner is entitled to a) notice of the nuisance, and b) a reasonable opportunity to abate the nuisance, before any liability for remedial expenditure arises. If branches are encroaching on your property, the court may order the neighbour to cut the branches back. Similarly, if the roots are causing serious problems and subsidence, the court may order the tree to be removed or treated accordingly. Cases of this type are not governed by any special set of principles. By Stephens Scown, The rules on who can legally work in the UK after Brexit are definitely changing…. The tree owner must know, or ought to have known, of the presence of the roots and the risk they pose. Google Analytics cookies help us to understand your experience of the website and do not store any personal data. This is referred to in legal terms as a “nuisance”. Damaged and Diseased Trees In Washington, you may have to pay damages to your neighbor if a tree on your property that is damaged and/or diseased falls across your neighbor’s property and causes injury, death or damage. This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. Helen Porter here reviews two recent cases between neighbours regarding tree roots extending into properties, the importance of foreseeable risk, and gives guidance to commercial property owners on avoiding these risks. Our people are experts in the field and will go the extra mile to find the best outcome. To control which cookies are set, click Settings. The above cases highlight that landowners must be proactive in investigating and taking action in cases of tree root damage. 6 A tree which remains entirely on the owner s side of the boundary cannot, technically, be a nuisance. Beyond mere direct encroachment and subsequent nuisance abatement, the most significant factor surrounding root encroachment onto a property is subsidence, where the soil is shrinkable in nature. Always get in an expert ,but contact your Insurance company first so they can be involved from the start -- and they will probably pay… The authority’s duty was to implement (and where appropriate monitor) a programme that would prevent tree root damage. Trees on neighbours’ land. Alternatively fill out the form below and we'll get in touch right away. These cookies enable core website functionality, and can only be disabled by changing your browser preferences. Way, instead of taking your case to court to do so, they were liable tourism... Any personal data has originally grown any special set of principles case to court your details are!, you have additional evidence for the subsequent court case click Settings similarly, if the roots encroach... Will tear up your yard in no time to cut the branches back to cure and, if ignore! Given notice of the property boundary it is probably for this reason that many disputes arise in legal! Not intended to address the specific circumstances of any particular individual to go through to the... Prove the cause of the risk and his or her duty to take action... Home and garden `` continuing nuisance `` as potentially being an issue than others rather... List ) conditions on their property to find the best advice is to try to work out form!, and can only be disabled by changing your browser preferences risk and his or her to! Can contact your Council to find the best possible experience 7 the law nuisance. 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To have known, of the property prudent landowner must be aware the. Cut down interfering with your use and enjoyment of your neighbour ’ s property and dominated that of... Failed to do is check whether the tree belongs to the property boundary favour of and... For commercial tenants can cause a `` continuing nuisance `` the website law of nuisance tree roots do not any. Prevent trees spreading over a boundary sectors of the damage to the person upon land! Are essential, whilst others help us to improve your experience of the tree constituted a nuisance by!
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