Rooting for trouble
In the article"Branching
Out: dealing with encroaching tree branches"(August 2012) I
discussed the issue of tree branches that encroach onto a
neighbour's land. In this article, I will focus on the
(almost) invisible but potentially more serious problem of
encroaching tree roots.
Tree roots have long been known to be a cause of
subsidence. Roots can also work their way into underground pipes,
foundations and brickwork and the remedial work required to put
right the damage caused can be extremely expensive. A property
owner may find that their buildings insurance policy may cover the
damage caused but the excess to be paid in such circumstances can
exceed £1,000. Other, less fortunate property owners may find
themselves having to meet the cost of repairing the damage caused
by encroaching tree roots themselves.
Trees roots which are allowed to encroach beyond
the boundary of the tree's owners land, like encroaching branches,
constitute a nuisance. To be able to pursue a claim for
damages for tree root damage, it is necessary to show that:-
damage has occurred;
the damage has been caused by tree roots, whether
it be in part of full. If there are other contributing factors, the
Court may decide the tree owner is only responsible for a
proportion of the damage caused and thus only liable for that
proportion of the damages claimed.
the tree owner is aware, or should have been
aware, that there was a real risk of damage being caused by his
the owner of the tree failed to take reasonable
steps to address the nuisance caused.
If an individual is concerned that the roots of a
tree on neighbouring land could cause damage to their property, the
first step is to notify the owner of the tree so that they can then
have the opportunity to investigate the matter and, if appropriate,
address the concern raised.
Unlike encroaching branches where the offending
tree and the extent of the encroachment can be clearly identified,
tree roots are, by and large, almost entirely beneath the
surface. Where there is a gathering of trees in a small area,
it may be very difficult to ascertain which trees pose a risk. It
may, therefore, be necessary for investigatory work to be carried
out both above and below ground before any decision can be reached
as to whether any remedial work to the tree required and if so, the
extent of that work. The tree owner must therefore be provided a
reasonable period of time to carry out these investigations.
If a legitimate concern is raised but the tree
owner, for whatever reason, does not take any remedial action,
proceedings offer the only means of resolving the matter. In the
case of tree branches, a party affected by branches encroaching
onto their land can cut back the encroaching branches to the
boundary line, provided that the work undertaken does not damage or
kill the tree. However, cutting back tree roots will almost
certainly cause significant damage or death to a tree. As a result,
this 'self-help; remedy should not be adopted.
disputes can become extremely costly. Adopting a common sense
approach at the outset, even in the face of hostility from a
neighbour, can help to avoid a protracted dispute and provide some
protection against adverse costs orders if proceedings ultimately
Rollits Property Dispute
Resolution Group specialises in property based disputes, including
boundary disputes, right of way disputes and trespass and nuisance
claims involving private individuals, body corporates and
government departments. If you have any queries arising from this
article, contact Chris Drinkall directly on 01482 337367.
Alternatively, if you have a property related grievance with a
third party, contact Ralph Gilbert, Partner and Head of Rollits'
Property Dispute Resolution Group on 01482 323239
31 October 2012
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.