Land owner uncontactable

[AHPP]

1 hour ago, daltontrees said:

It doesn't matter what came first. At law, encroachment is negligence if it causes foreseeable damage.

Is it usually litigated as negligence rather than nuisance or trespass when there is damage?

Edited May 24 by AHPP

[daltontrees]

15 minutes ago, Steven P said:

Yes, tree roots are probably encroaching on their land, report says causing damage. However if the builders built to a certain standard knowing that there was a maturing tree within a distance (Oak, 30m?), then surely some responsibility must go back to the designer of the building?

You'd think so, but no. There is specific case law (known as the candy floss conservatory case) where the  foundations were totally substandard but the adjacent tree owner was still liable (to some degree) for subsidence.

It might be different if the foundations were meant to have been designed to a particular standard e.g. the current NHBC guidelines, but weren't. The tree owner then might argue contributory negligence, which I think personally is valid and fair. The house owner would then have to sue the designers. I expect in the next few years a case like that will come through, as the candy floss case really dodged the scale of the issue (because it then referred the compensation issue back to a tribunal).

[daltontrees]

Just now, AHPP said:

Is it usually litigated as negligence rather than nuiscance or trespass when there is damage?

Good question, i.e. a bastard to answer. As I understand it encroachment is relatively trivial if it can be abated easily. But it becomes nuisance when it prevents the reasonable use of the garden. In that respect it doesn't even have to be causing damage (myth no. 1). Encroachment becomes negligence when it foreseeable causes damage or other loss. English case law is littered with confusing written judgements that conflate nuisance and negligence (myth no.2) but as time goes by the important distinction is made between nuisance (prevention of use) and negigence (damage or loss).

Trespass as a legal principle no longer exists but it was treated in old authorities as nuisance, and was referred to recenly in a  big case as nuisance, but that's only relevant in wilful acts of encroachment. Tree roots encroach gradaually and unseen; the intent (or even neglect) and foreseeability are far from obvious. Trespass, nuisance and negligence are all (in England) torts, wrongs of act or omission. In some ways it doesn't matter what brand of tort it is, it's still a wrong against another. But nuisance is a breach of property rights (the rights to enjoy your property) and negligence by tree root damage is a differnet kind of wrong against a person's property, causing loss.

[AHPP]

Eh?! Trespass to land no longer a tort? 

[Steven P]

Yes, English law and case law ... 'Candy floss conservatory' - probably went that way because it is low value? Could be looked at again if the damages were to a new build worth lots of money, or lots of money for the repairs where fighting the case, judicial review and all that could make economic sense?

 

Remember years ago a talk by the H&S man, often they would just settle cases because the legal fees were more than the payout even if the injured party had no leg to stand on - cheaper - might be the same here that a small repair is more cheaper than contesting the case, getting the designers or builders to court and passing the liability on to them.

[GarethM]

Plus a judgement becomes case law, kinda.

 

If you settle and pay out it remains as ambiguous as it was at the start.

[Jon Heuch]

21 hours ago, NJA said:

But surely this is why you pay a solicitor to do searches and manage legal side of purchase?  Presume they pulled up that house had subsidence issues in past, my experience of buying various properties is they'll advise where you stand and next steps (surprising amount is included in initial fee)

Expensive?  Yea but not as expensive as doing a £3 search to try and (failing) to find solutions to problems that could potentially cost £1000's.

Up to the op but that'd be first thing I'd do, solicitor experienced in conveyancing should be able to resolve this.  

If they want to save a few quid and have the satisfaction of knowing after hours of research they'd sorted it, then crack on.

The solicitor searches for things related to the land being purchased; that might include planning applications nearby but the focus is on the property not what the neighbours have been up to. As said if you ask a solicitor to trace a neighbour I am sure they can try, but you need to ask them to do this and not expect such details to come from conveyancing.

[Jon Heuch]

21 hours ago, Squaredy said:

....they may not agree that the tree is a problem.

... the foundations might be a bit shallow. Or some other factors may come into play.

 

My house suffered slight subsidence in the hot summer of 2018, and the insurance company said I should remove an apple tree and 2 metres of hedge.  But the main reason is almost certainly the fact that the foundations were only 300mm deep.  New builds in my area have 1000mm foundations.

 

 These things are very rarely black and white, and often the only winners are solicitors.

Not so. Subsidence is an issue fairly easy to resolve using experienced teams of people. So your house has shallow foundations. Yes, it's more susceptible to movement than if it had 1m deep foundations. But did damage occur in 2003, the last really hot, dry summer (before 2018)? I assume not. What was the difference between 2003 and 2018 - most probably the only thing that differed is that the tree has grown. Remove the tree and in 2022, the most recent hot dry summer, did your property move again. I'm guessing not.So tree removal has resolved the problem?

 

Yes, the underlying problem is one of shallow foundations but focus on how to resolve the issue. Increase foundation depth or remove an apple tree and hedge? If it was simply your money involved I think  you would agree the common sense solution is to remove the tree and hedge.

[Jon Heuch]

21 hours ago, dan blocker said:

It’s easy to let your heart rule your head over house purchases but I’m surprised you’re carrying on with the purchase to be honest? If you find the owner don’t expect any issue you have with the property to be sorted? Could take years - if ever to reach a solution and potentially £1000s in costs🤔

It may take time, but it's pretty easy to write a letter to ensure that a) the property owner removes the tree (to minimise their liability or b) allows access to remove the tree by the affected property owner. There may be some initial resistance but when faced with the reality of the liability very few resist for long.

[Jon Heuch]

16 hours ago, daveatdave said:

i had a quote from a solicitor a couple of weeks back for a litigation matter and it was £265 plus vat per hour 

You know what a bargain that was....