Mrs

[Ella Chiara]

I’m having an issue with my neighbour regarding a fully mature Monterey Cypress tree on our boundary. He bought the house 4 years ago and immediately asked us to fell the tree as it cut the light to his conservatory, which was built 6 years ago by the previous owners (on 300mm concrete foundations). The previous owner knocked through more than half an existing outside wall of their kitchen and attached a wooden conservatory. 2 years later he sold the house as he’d told us, and another neighbour, that his builders were awful and they’d had nothing but problems with their work.

Our current neighbour informed us 2 months ago that our tree was causing subsidence damage to his kitchen and conservatory. 
he has appointed a loss adjusters who has provided us with a Structural Engineers report, which states, “ it would appear that on going water extraction by the tree and associated soil shrinkage giving rise to subsidence is the primary cause of damage”, but it completely ignores the fact they found the conservatory foundations to be 300mm, instead of the recommended 1000mm (because it’s close to the tree). They haven’t investigated the kitchen foundations.

We have heard nothing from their house insurers, but their loss adjuster is quite passive aggressive and has said that our neighbours are willing to pay in full for the removal of our tree, but it needs to be done immediately. He has since written to us a further 2 times threatening that the damage caused by our tree is our responsibility financially.

Today we received through the post from our local council a planning application from our neighbours for a single storey extension coming off their kitchen (in place of the current wooden conservatory) and 3m longer, and it notes on the drawings “tree to be removed” where our tree is drawn. The tree would indeed have to be removed as part of their proposed extension would be where the tree is. 

We have owned our property for 10 years, and have had a qualified tree surgeon come every year to check the tree and manage anything he thinks needs doing (2 branches removed in 10 years), and every 3 years we have the canopy reduced, as recommended by an Arborist report we had done 7 years ago at our mortgage companies request.
 

Can anyone offer any advice to us on if, or how, we should go about fighting this please?

 

obviously if the tree is doing damage it needs to be addressed, but I think it’s the easiest thing to blame and it’s the very shallow foundations and poor building work that is the primary cause of damage.

 

Thank you

[Big J]

I work in forestry, so am not qualified to help with this, but I'm sorry that you're having such difficulty. 

 

It would assist those able to help if you were able to post a few photos. A picture is a thousand words and such like

 

[Khriss]

Basically   .... CHANCERS,  an insurance loss adjuster is not familiar with any of this and is probably working from home ( in an extension they are claiming tree related subsidence for)  contest the planning app as ' it will cut out the light' to yr garden  ?  3x3 extensions wont need planning consent. Structural engineers report is a joke. It 'would appear'  well, bore hole, soil type , root sample, would be evidence. Not appearance. Definately contest as its just not kosher. Also knocking through external walls is not undertaken lightly!  K

[Anno]

Not sure I fully understand, if the tree is in your ownership, on your land why is he building an extension onto it?

 

what actual evidence do you have of poor construction methods for the conservatory?

Edited October 2, 2020 by Anno

[Paddy1000111]

1 hour ago, Khriss said:

Basically   .... CHANCERS,  an insurance loss adjuster is not familiar with any of this and is probably working from home ( in an extension they are claiming tree related subsidence for)  contest the planning app as ' it will cut out the light' to yr garden  ?  3x3 extensions wont need planning consent. Structural engineers report is a joke. It 'would appear'  well, bore hole, soil type , root sample, would be evidence. Not appearance. Definitely contest as its just not kosher. Also knocking through external walls is not undertaken lightly!  K

I agree with Khriss completely on this. It does sound like a bunch of chancers. Unless there is soil samples done, root samples etc "It appears" sounds like a letter from a mate they have in the insurance adjuster business. On the side of taking the tree down then they are more than welcome to sever the root on their side should it be one causing an issue...

 

Out of interest are you in a clay soil area as that is more prone (and really the only type of soil prone) to roots causing shrinkage from moisture removal.

 

You should only really be taking information from an independent (chosen by anyone but your neighbour) qualified building surveyor or structural engineer. AFAIK a loss adjuster isn't a qualified structural engineer but someone who can take information from a qualified and certified person. Their opinion is meaningless. 

 

It sounds like they are trying to find reasons and bully you into removing what sounds like a beautiful and well cared for tree that you have spent time investing in. 

 

As far as you being financially responsible it could be the case. If your tree has physically damaged someone's property then you can be left liable however if that came around, the buildings foundations and the fact it doesn't meet regulations will have to be taken into account and it should be deemed not your fault. 

 

It also sounds to me that the foundations were done by a bunch of cowboys...

[Khriss]

This is meat and drink to me, as the absolute nonsense that comes out of these claims, is easily defeated. I cannot imagine how many of these cases are running in tbe UK at this time and it is entirely down to UK insurance sales policies. Am sure the other party are expecting to claim on your house insurance...... K

[Paddy1000111]

5 hours ago, Khriss said:

This is meat and drink to me, as the absolute nonsense that comes out of these claims, is easily defeated. I cannot imagine how many of these cases are running in tbe UK at this time and it is entirely down to UK insurance sales policies. Am sure the other party are expecting to claim on your house insurance...... K

As someone with more experience than me khriss... If some one has an issue with a root and does nothing about it, knowing that they can cut it in accordance with boundary laws etc, If said root, that they failed to take care of causes damage, are they responsible? 

 

If someone has an overhanging branch that they never deal with damage their guttering then aren't they to blame for negligence? I can't go in my neighbours garden every few months and check the roots and branches are safe for their house? 

[Khriss]

@Paddy1000111  its just not an easy answer,  people just do not realise their liability with their trees. Once its over 2m height, i or any other competent person should give written advice, periodically,  with recommendations. Which should be followed at some point. This is duty of care.  Its a cost.  But it (  i have saved some clients literally thousands)  means yr in a good position-with yr neighbour or the Local Authority or an Insurer.   K

[Khriss]

( neighbour has over hanging branch filling my gutter with leaves - i would go round n say " mate, am getting blocked gutter from yr tree an its leaf fall, i will trim it back from yr gutter and my gutter n blast out both our gutters free"   that will put you in a good light and cost way less than taking the bugger to court on an actionable nuisance basis) 

[Paddy1000111]

28 minutes ago, Khriss said:

( neighbour has over hanging branch filling my gutter with leaves - i would go round n say " mate, am getting blocked gutter from yr tree an its leaf fall, i will trim it back from yr gutter and my gutter n blast out both our gutters free"   that will put you in a good light and cost way less than taking the bugger to court on an actionable nuisance basis) 

I'm all for staying amicable with the neighbours. I was just curious, if you're unaware of the issues then you shouldn't really be liable but you can't give an all encompassing answer for anything with trees. 

 

I thought that leaves blocking a gutter/downpipe wasn't the financial responsibility of the tree owner as it's not damage but maintenance? Saying that, I would probably do the same as you although AFAIK under the law, general cleaning and emptying gutters isn't the responsibility of the tree owner. Bit like having a garden full of windfall rubbish... 

 

I used to do building work and I have seen wooden conservatory's/orangeries built on a ~300mm plinth  with incorrect foundation work for the soil type and within a few years it has tipped off the end of the house leaving a crack up the back/joining face of >2-3". It sounds like the cowboy builders messed up. A lot of builders seem to think that because it's a single story wooden box that it doesn't need much ground work but levers and angles being what they are 1/4" drop on the outside can become a 2" crack quite easily.

If it were me, and I could be held liable I would look at getting in an independent structural engineer/surveyor and get an independent opinion at my own cost. Insurance companies like to pin the blame on each other and never give an independent opinion. They may say that the root is a factor but improper foundations are another and could only leave you liable for 25% of the cost or something... 

[Khriss]

Only thing you got wrong in that was insurance companies actually love to rack up fees and drag it out forever ..... I  tend to get to the cause n demand answers, when faced with the above scenario, but hey they make money at it ?  K