Ben Jones is a partner in our property disputes team. Its weak branches fall in storms. Your liability exists … 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. 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. 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 probably for this reason that many disputes arise in the first place. 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. By Stephens Scown, The rules on who can legally work in the UK after Brexit are definitely changing…. 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. 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. Prevention is always preferable to cure and, if they ignore you, you have additional evidence for the subsequent court case. 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. 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 fact, the authority planned a four yearly programme of reduction in the crowns of the offending trees but failed to implement it. You could file a nuisance claim, and if the court finds that the true is a nuisance, the court may order the tree removed. 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 … This includes the branches and the fruit of any tree or shrub. 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. 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. It should D denied the tree constituted a nuisance or a hazard. 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 . 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. If branches are encroaching on your property, the court may order the neighbour to cut the branches back. 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]. 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. You should therefore return the roots to the owner of the tree or obtain their consent for disposal. This fast-growing tree has a root system that will tear up your yard in no time. Don’t grab the axe just yet. Tree branches and roots growing over the boundary are not trespassing in the legal sense. Third-Party cookies are set by our partners and help us to improve your experience of the website. Cases of this type are not governed by any special set of principles. 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. We support the key sectors of the region- rural, tourism, food & drink, energy, mining & minerals. The technology to maintain this privacy management relies on cookie identifiers. The risk is particularly relevant to owners of industrial parks and agricultural land with trees on or close to the boundaries. The tree belongs to the person upon whose land it has originally grown. 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. Alternatively fill out the form below and we'll get in touch right away. Mrs Kane had a large cypress hedge on her property as well as an oak tree. Always get in an expert ,but contact your Insurance company first so they can be involved from the start -- and they will probably pay… 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. Last updated: Trees on neighbours’ land. 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. 5 They are legally a nuisance . 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. The applicant applied for an urgent interdict to have the trees cut down. Removing or resetting your browser cookies will reset these preferences. 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. 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. 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’. By pressing send and providing your details you are agreeing to our Privacy Notice. Tree roots may affect neighbouring land irrespective of whether the roots themselves encroach across the boundary of that land. Our people are experts in the field and will go the extra mile to find the best outcome. Did the tree roots cause the damage to the neighbouring property? Registered in England number OC 325046. 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. 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. Where the branch or root of a tree comes onto a neighbour's land, a nuisance situation exists. 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. Authorised and Regulated by the Financial Conduct Authority (FCA 464973), Warner Goodman LLP is a limited liability partnership. Click here for a full list of Google Analytics cookies used on this site. 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. The best advice is to try to work out the problem in a neighborly way, instead of taking your case to court. This even applies to windfall apples etc. We work together as a team to give clients more than they expect. 7 The law of nuisance is essentially about balancing interests in cases of con icting land use. 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. The law about neighbours' rights and responsibilities for trees is covered by the common law of nuisance. You can cut them yourself but you must try to limit the amount of damage to the tree, which can be difficult to do. The tree may constitute a nuisance, by interfering with your use and enjoyment of your own property. 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’. 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The law of nuisance may provide several remedies depending on whether the tree has caused, or is likely to cause, actual damage or loss. Get specialist help from a tree surgeon if the roots of your neighbour’s tree are affecting your home and garden. Clicking the Accept All button means you are accepting analytics and third-party cookies (check the full list). 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. There is no requirement in law to keep a hedge trimmed or to prevent trees spreading over a boundary. We use cookies to optimise site functionality and give you the best possible experience. Allowing tree roots to encroach on your neighbour’s land constitutes common law, private nuisance. You can contact your Council to find this out. Clearly I do not have the ability or the money to deal with this. Most cities have ordinances prohibiting property owners from keeping dangerous conditions on their property. 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. Any claim for damages must also be reasonable. July 1, 2020. The tree owner has been given notice of the damage being caused. Google Analytics cookies help us to understand your experience of the website and do not store any personal data. This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. This…, December 22, 2020 Tweet. The first thing you will need to do is check whether the tree is protected or subject to an environmental overlay. Looking first at the facts of Khan v Harrow & Kane, Mr and Mrs Khan owned a house next door to Mrs Kane. 6 A tree which remains entirely on the owner s side of the boundary cannot, technically, be a nuisance. A reasonably prudent landowner must be aware of the risk and his or her duty to take appropriate action. If you have any concerns about the legal aspects of tree root damage you can contact Helen on 02380 717717. 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. 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. 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. 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. 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. Instead, a proportionate response is expected which may include pruning and pollarding trees that have been identified as potentially being an issue. Damage caused to property by tree roots is a problem often encountered by land owners, occupiers and developers. 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. To control which cookies are set, click Settings. 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. In order to avoid liability, the tree owner must be aware of the problem and take appropriate action. The Court held that was not the relevant test. You can sue the owner of the tree for damage caused to your property in the last 6 years, but only if : 1. and is not intended to address the specific circumstances of any particular individual. 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. 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. 23/10/2013. The damage was therefore reasonably foreseeable and the authority had a duty to take appropriate action. A Perennial Problem: Tree Root Nuisance Print publication. You can only trim up to the property boundary. COVID 19 - what does it mean for commercial tenants? If you fail to do so, your action will amount to theft. Registered Office: Portland Chambers, 66 West Street, Fareham, Hampshire, PO16 0JR. Again, there is a process to go through to prove the cause of the damage, and the extent of that damage. The tree owner must know, or ought to have known, of the presence of the roots and the risk they pose. Because tree roots carry on growing they can cause a " continuing Nuisance ". 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. 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. Judgment was given in favour of Mr and Mrs Khan for the damage caused by the cypress hedge. © Warner Goodman LLP. 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. Authorised and Regulated by the Solicitors Regulation Authority (SRA 463470). According to The Grumpy Gardener, “Its roots are infamous for clogging water lines and breaking sidewalks. 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. You are therefore, technically exercising the self-help remedy of ‘abating a nuisance’ by cutting the offending branches off. 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. As they had failed to do so, they were liable. 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. The hedge was very close to Mr and Mrs Khan’s property and dominated that side of the property. D denied liability. Click here for a full list of third-party plugins used on this site. 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. You can ask the court to order the owner to prune or remove the tree. 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. They said, among other things, that roots will not damage drains but they can grow into drains through existing cracks caused by other means. The above cases highlight that landowners must be proactive in investigating and taking action in cases of tree root damage. Tree roots and claims in nuisance. 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. These cookies enable core website functionality, and can only be disabled by changing your browser preferences. 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. 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. Been given notice of the damage, and law of nuisance tree roots fruit of any particular individual Kane had a to! On 02380 717717 a duty to take appropriate action water lines and breaking sidewalks fast-growing. At the facts of Khan v Harrow & Kane, Mr and Mrs Khan for the was. S side of the property key sectors of the damage being caused encountered. Or resetting your browser preferences and pollarding trees that have been identified as potentially being an issue can everyone. Sectors of the tree or shrub these cookies enable core website functionality, and should not be held for... Can contact Helen on 02380 717717 265100 or emaildrt @ stephens-scown.co.uk for an interdict! 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