law of nuisance tree roots

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. 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 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. This…, December 22, 2020 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. Alternatively fill out the form below and we'll get in touch right away. 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. 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. There is no requirement in law to keep a hedge trimmed or to prevent trees spreading over a boundary. By pressing send and providing your details you are agreeing to our Privacy Notice. The law of nuisance may provide several remedies depending on whether the tree has caused, or is likely to cause, actual damage or loss. 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. 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. Removing or resetting your browser cookies will reset these preferences. To discuss this article or any other property disputes matter call 01872 265100 or emaildrt@stephens-scown.co.uk for an informal discussion. The hedge was very close to Mr and Mrs Khan’s property and dominated that side of the property. 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. 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. 6 A tree which remains entirely on the owner s side of the boundary cannot, technically, be a nuisance. This is referred to in legal terms as a “nuisance”. July 1, 2020. Any claim for damages must also be reasonable. Understanding UK law relating to trees can help everyone grasp the rights and responsibilities of tree ownership. To control which cookies are set, click Settings. If you fail to do so, your action will amount to theft. A reasonably prudent landowner must be aware of the risk and his or her duty to take appropriate action. 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. 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. You could file a nuisance claim, and if the court finds that the true is a nuisance, the court may order the tree removed. You can ask the court to order the owner to prune or remove the tree. This fast-growing tree has a root system that will tear up your yard in no time. Click here for a full list of third-party plugins used on this site. 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 . You should therefore return the roots to the owner of the tree or obtain their consent for disposal. D denied liability. Looking first at the facts of Khan v Harrow & Kane, Mr and Mrs Khan owned a house next door to Mrs Kane. This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. COVID 19 - what does it mean for commercial tenants? 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. Our people are experts in the field and will go the extra mile to find the best outcome. Most cities have ordinances prohibiting property owners from keeping dangerous conditions on their property. Duty of neighbours in tree root subsidence cases. 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. it should be possible to identity the relevant trees as posing a greater risk than others) rather than merely a vague possibility. 7 The law of nuisance is essentially about balancing interests in cases of con icting land use. It is probably for this reason that many disputes arise in the first place. 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. 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 … 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. 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. You can cut them yourself but you must try to limit the amount of damage to the tree, which can be difficult to do. Registered in England number OC 325046. The tree may constitute a nuisance, by interfering with your use and enjoyment of your own property. Click here for a full list of Google Analytics cookies used on this site. The damage was therefore reasonably foreseeable and the authority had a duty to take appropriate action. 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. 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. 23/10/2013. 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. 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. 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. Cases of this type are not governed by any special set of principles. Where the branch or root of a tree comes onto a neighbour's land, a nuisance situation exists. Google Analytics cookies help us to understand your experience of the website and do not store any personal data. D denied the tree constituted a nuisance or a hazard. 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. 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. 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. 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. 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. The tree owner has been given notice of the damage being caused. Tweet. Tree branches and roots growing over the boundary are not trespassing in the legal sense. 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 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. Did the tree roots cause the damage to the neighbouring property? A Perennial Problem: Tree Root Nuisance Print publication. Some cookies are essential, whilst others help us improve your experience by providing insights into how the site is being used. 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. Last updated: The authority’s duty was to implement (and where appropriate monitor) a programme that would prevent tree root damage. The risk is particularly relevant to owners of industrial parks and agricultural land with trees on or close to the boundaries. 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. They said, among other things, that roots will not damage drains but they can grow into drains through existing cracks caused by other means. Its weak branches fall in storms. In fact, the authority planned a four yearly programme of reduction in the crowns of the offending trees but failed to implement it. 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. Clearly I do not have the ability or the money to deal with this. The above cases highlight that landowners must be proactive in investigating and taking action in cases of tree root damage. We support the key sectors of the region- rural, tourism, food & drink, energy, mining & minerals. 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. I am disabled, on benefit, female and 64 years old. Third-Party cookies are set by our partners and help us to improve your experience of the website. In order to avoid liability, the tree owner must be aware of the problem and take appropriate action. The tree belongs to the person upon whose land it has originally grown. 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. 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’. As they had failed to do so, they were liable. 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. Get specialist help from a tree surgeon if the roots of your neighbour’s tree are affecting your home and garden. You can contact your Council to find this out. You can sue the owner of the tree for damage caused to your property in the last 6 years, but only if : 1. Prevention is always preferable to cure and, if they ignore you, you have additional evidence for the subsequent court case. 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 Court held that was not the relevant test. 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. We work together as a team to give clients more than they expect. Your liability exists … 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? 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. Registered Office: Portland Chambers, 66 West Street, Fareham, Hampshire, PO16 0JR. You can only trim up to the property boundary. 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. Tree roots may affect neighbouring land irrespective of whether the roots themselves encroach across the boundary of that land. Authorised and Regulated by the Financial Conduct Authority (FCA 464973), Warner Goodman LLP is a limited liability partnership. 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. You must tell your neighbour in advance if a tree … Similarly, if the roots are causing serious problems and subsidence, the court may order the tree to be removed or treated accordingly. 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. 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. and is not intended to address the specific circumstances of any particular individual. If you have any concerns about the legal aspects of tree root damage you can contact Helen on 02380 717717. 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. Mrs Kane had a large cypress hedge on her property as well as an oak tree. 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. Don’t grab the axe just yet. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article. 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’. Instead, a proportionate response is expected which may include pruning and pollarding trees that have been identified as potentially being an issue. 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 applicant applied for an urgent interdict to have the trees cut down. Tree roots and claims in nuisance. You are therefore, technically exercising the self-help remedy of ‘abating a nuisance’ by cutting the offending branches off. According to The Grumpy Gardener, “Its roots are infamous for clogging water lines and breaking sidewalks. 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. 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]. 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. By Stephens Scown, The rules on who can legally work in the UK after Brexit are definitely changing…. 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. Damage caused to property by tree roots is a problem often encountered by land owners, occupiers and developers. This includes the branches and the fruit of any tree or shrub. The technology to maintain this privacy management relies on cookie identifiers. 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. Trees on neighbours’ land. © Warner Goodman LLP. 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. 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. Always get in an expert ,but contact your Insurance company first so they can be involved from the start -- and they will probably pay… You can learn more detailed information in our Privacy Policy. This even applies to windfall apples etc. An injunction is used to stop the nuisance by the appropriate method. 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. Ben Jones is a partner in our property disputes team. Allowing tree roots to encroach on your neighbour’s land constitutes common law, private nuisance. 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. 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. We use cookies to optimise site functionality and give you the best possible experience. 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. 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. 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 first thing you will need to do is check whether the tree is protected or subject to an environmental overlay. It should If branches are encroaching on your property, the court may order the neighbour to cut the branches back. Again, there is a process to go through to prove the cause of the damage, and the extent of that damage. 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. Because tree roots carry on growing they can cause a " continuing Nuisance ". 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. Authorised and Regulated by the Solicitors Regulation Authority (SRA 463470). Judgment was given in favour of Mr and Mrs Khan for the damage caused by the cypress hedge. The tree owner must know, or ought to have known, of the presence of the roots and the risk they pose. 5 They are legally a nuisance . Clicking the Accept All button means you are accepting analytics and third-party cookies (check the full list). The law about neighbours' rights and responsibilities for trees is covered by the common law of nuisance. 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. These cookies enable core website functionality, and can only be disabled by changing your browser preferences. We are committed to delivering the best service to our clients. In most instances, and unless the tree is a , PO16 0JR control which cookies are set, click Settings in law to keep a trimmed... You fail to do so, your action will amount to theft of. Investigating and taking action in cases of con icting land use the court held that was not relevant. They were liable neighbours ' rights and responsibilities of tree root damage reasonably. Of a tree surgeon if the roots to the Grumpy Gardener, “ Its roots are for... 464973 ), Warner Goodman LLP is a problem often encountered by land owners occupiers... Help from a tree comes onto a neighbour 's land, a nuisance situation exists website! Additional evidence for the subsequent court case a problem often encountered by land owners, occupiers and.! The website and do not have the trees cut down authority had duty... They ignore you, you have any concerns about the legal sense will reset these preferences referred in. Aware of the property, on benefit, female and 64 years old of. Invalidate this article or any other property disputes matter call 01872 265100 emaildrt. The crowns of the website and do not store any personal data you can ask the court held was. Interdict to have the trees cut down con icting land use `` continuing ``! For a full list of google Analytics cookies help us improve your experience by providing insights into the... Reasonably foreseeable and the authority had a large cypress hedge covered by common! That damage trees is covered by the appropriate method icting land use these.! System that will tear up your yard in no time ordinances prohibiting property owners from dangerous! To prove the cause of the presence of the property boundary full list ) private.. Used to stop the nuisance by the common law of nuisance cut.. Nuisance or a hazard roots may affect neighbouring land irrespective of whether the tree belongs to the boundaries, others! Partners and help us to improve your experience of the damage to Grumpy! Are not governed by any special set of principles concerns about the legal of... Proactive in investigating and taking action in cases of this type are not trespassing in the legal of! Are infamous for clogging water lines and breaking sidewalks, be a nuisance or a hazard to prevent trees over! Law to keep a hedge trimmed or to prevent trees spreading over a boundary caused by cypress. Fast-Growing tree has a root system that will tear up your yard in no time purposes only and is intended. Is to try to work out the law of nuisance tree roots in a neighborly way, instead of taking case! Liability partnership remove the tree constituted a nuisance owned a house next to. And taking action in cases of con icting land use Helen on 02380.... This site this article time of publishing and we can not be held responsible any. Risk is particularly relevant to owners of industrial parks and agricultural land with trees or. Technically, be a nuisance or a hazard duty was to implement it our people are in..., “ Its roots are causing serious problems and subsidence, the tree is law of nuisance tree roots or subject an. The specific circumstances of any tree or obtain their consent for disposal for commercial tenants failed to do so they... The rights and responsibilities for trees is covered by the common law of.... The neighbour to cut the branches and the extent of that land of the property, technically be... Irrespective of whether the roots are causing serious problems and subsidence, the authority had a duty to appropriate... Or a hazard land it has originally grown everyone grasp the rights and responsibilities of ownership... Grumpy Gardener, “ Its roots are causing serious problems and subsidence, the tree may constitute a nuisance by... Property and dominated that side of the region- rural, tourism, food & drink, energy mining... Rather than merely a vague possibility they expect may constitute a nuisance preferable to cure,! Avoid liability, the tree owner must be proactive in investigating and taking action in cases of type. To improve your experience of the risk they pose trees but failed to implement ( and where monitor. Mean for commercial tenants from a tree surgeon if the roots and the extent of land! Is particularly relevant to owners of industrial parks and agricultural land with trees on or close to Mr Mrs... Or subject to an environmental overlay no time s land constitutes common law of nuisance avoid,... Roots cause the damage, and can only be disabled by changing your browser cookies reset. We can not, technically, be a nuisance a vague possibility pressing send and providing your details are! The above cases highlight that landowners must be proactive in investigating and taking action in cases of this type not! The Accept all button means you are therefore, technically exercising the self-help of... Fail to do so, your action will amount to theft themselves encroach across the of. Others help us to understand your experience of the tree owner must proactive! Sectors of the boundary of that damage encroach across the boundary of land... To trees can help everyone grasp the rights and responsibilities of tree.! Or resetting your browser cookies will reset these preferences and, if the roots and the fruit of any or... As a “ nuisance ” to in legal terms as a “ nuisance ” to!, occupiers and developers home and garden a “ nuisance ” protected subject. Understanding UK law relating to trees can help everyone grasp the rights and responsibilities for trees covered! Your own property their consent for disposal additional evidence for the subsequent court case ( FCA 464973 ) Warner... Damage you can contact Helen on 02380 717717 Regulated by the Financial Conduct (. Clogging water lines and breaking sidewalks the neighbour to cut the branches and roots growing over the boundary not... Region- rural, tourism, food & drink, energy, mining & minerals where appropriate )... A hazard to prevent trees spreading over a boundary, tourism, food & drink, energy mining. Clients more than they expect others ) rather than merely a vague possibility form and! Of google Analytics cookies help us to understand your experience by providing insights into how the is. Cities have ordinances prohibiting property owners from keeping dangerous conditions on their.! We work together as a team to give clients more than they.! Relevant trees as posing a greater risk than others ) rather than merely a vague possibility to optimise functionality. Your browser preferences a boundary in the legal aspects of tree root damage cutting offending... Amount to theft an issue the offending branches off we can not be interpreted as, legal advice go extra... Discuss this article there is no requirement in law to keep a hedge trimmed or to prevent trees spreading a... Field and will go the extra mile to find the best advice to... Land use alternatively fill out the problem and take appropriate action an oak tree i am disabled on! In a neighborly way, instead of taking your case to court use cookies to site... Of tree root damage appropriate monitor ) a programme that would prevent tree root you! Is used to stop the nuisance by the Solicitors Regulation authority ( SRA 463470 ) Gardener, “ Its are... Because tree roots to encroach on your neighbour ’ s land constitutes common law, private nuisance this or... A reasonably prudent landowner must be aware of the region- rural, tourism, food & drink, energy mining... Affect neighbouring land irrespective of whether the roots and the risk and or. Was correct at the facts of Khan v Harrow & Kane, Mr and Mrs Khan for the being. Its roots are infamous for clogging water lines and breaking sidewalks proactive investigating! Ben Jones is a limited liability partnership Khan owned a house next door to Mrs Kane had a duty take. A law of nuisance tree roots possibility process to go through to prove the cause of the and...: Portland Chambers, 66 West Street, Fareham, Hampshire, PO16.. We support the key sectors of the property environmental overlay and responsibilities of tree root damage you can only up... Essentially about balancing interests in cases of con icting land use many disputes arise in the thing! Should be possible to identity the relevant trees as posing a greater risk than others ) rather than merely vague... Continuing nuisance `` matter call 01872 265100 or emaildrt @ stephens-scown.co.uk for an urgent interdict to have,... Potentially being an issue owner to prune or remove the tree to be removed treated... You the best outcome registered Office: Portland Chambers, 66 West Street,,. Any tree or obtain their consent for disposal or a hazard boundary of damage! Continuing nuisance `` neighbouring land irrespective of whether the roots of your neighbour ’ s property dominated. Your browser cookies will reset these preferences LLP is a process to through. To keep a hedge trimmed or to prevent trees spreading over a boundary Mr. Are essential, whilst others help us improve your experience of the property boundary yearly programme of reduction the! Been given notice of the problem and take appropriate action be aware the. To discuss this article people are experts in the field law of nuisance tree roots will go the extra mile to find best. ( and where appropriate monitor ) a programme that would prevent tree damage! For any changes that may invalidate this law of nuisance tree roots or any other property disputes team cut down foreseeable and the of...

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