Written by on Desembre 29, 2020 in Sin categoría

The damage was therefore reasonably foreseeable and the authority had a duty to take appropriate action. You can ask the court to order the owner to prune or remove the tree. You should therefore return the roots to the owner of the tree or obtain their consent for disposal. Tree branches and roots growing over the boundary are not trespassing in the legal sense. 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. I am disabled, on benefit, female and 64 years old. If you fail to do so, your action will amount to theft. 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. 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 control which cookies are set, click Settings. There is no requirement in law to keep a hedge trimmed or to prevent trees spreading over a boundary. An injunction is used to stop the nuisance by the appropriate method. You are therefore, technically exercising the self-help remedy of ‘abating a nuisance’ by cutting the offending branches off. Cases of this type are not governed by any special set of principles. Clicking the Accept All button means you are accepting analytics and third-party cookies (check the full list). We work together as a team to give clients more than they expect. 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. 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. 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. 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. 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. Looking first at the facts of Khan v Harrow & Kane, Mr and Mrs Khan owned a house next door to Mrs Kane. 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. You can only trim up to the property boundary. D denied liability. Clearly I do not have the ability or the money to deal with this. 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. 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. The hedge was very close to Mr and Mrs Khan’s property and dominated that side of the property. 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. We support the key sectors of the region- rural, tourism, food & drink, energy, mining & minerals. and is not intended to address the specific circumstances of any particular individual. Some cookies are essential, whilst others help us improve your experience by providing insights into how the site is being used. Trees on neighbours’ land. 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. Your liability exists … Google Analytics cookies help us to understand your experience of the website and do not store any personal data. 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. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article. 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. Tree roots may affect neighbouring land irrespective of whether the roots themselves encroach across the boundary of that land. Don’t grab the axe just yet. You can contact your Council to find this out. 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. Ben Jones is a partner in our property disputes team. 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. 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. You can cut them yourself but you must try to limit the amount of damage to the tree, which can be difficult to do. Click here for a full list of Google Analytics cookies used on this site. 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. This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. Did the tree roots cause the damage to the neighbouring property? 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. 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. 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]. 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. Authorised and Regulated by the Financial Conduct Authority (FCA 464973), Warner Goodman LLP is a limited liability partnership. © Warner Goodman LLP. 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. 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. 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. 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. 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. 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. Click here for a full list of third-party plugins used on this site. 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. We use cookies to optimise site functionality and give you the best possible experience. 23/10/2013. The risk is particularly relevant to owners of industrial parks and agricultural land with trees on or close to the boundaries. The authority’s duty was to implement (and where appropriate monitor) a programme that would prevent tree root damage. 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