Legally enforce inspection?

[WorriedNeighbour]

One of my neighbours has a tree (very high evergreen, no idea what it is) that borders 3 properties, and parts of it could fall into any of the 3 gardens.

 

A few years ago, a huge branch fell off and into my garden, damaging some plants, and a man (tenant?) came to remove it, making quite a mess. I told him the tree had many more dead branches and needed checking, but he just shrugged.

 

During the storm last weekend, the whole top of the tree fell off, a chunk 2 metres long, approximately 40/50 cm in diameter, definitely enough to kill somebody. It landed on my shed, destroyed the shed roof and damaged several long established plants.

 

I sent a note to the owner who lives in the road behind and got an abusive call back, telling me to sort out the mess myself, and he would neither pay for any damage nor a tree inspection.

 

What is the legal situation? What does he have to pay for? Can I force him to get the tree chunk removed by a professional to avoid further damage? What can I do? Can I have the tree chunk removed myself, get a new shed and plants and claim the cost in court? I am struggling financially as it is and fear he will never pay up. Any specific procedures?

 

Even after the incident, the tree is still 7 meters high and looks very dangerous with many dead branches. It is an obvious health and safety risk. My neighbours have a 2-year-old who has a playing area at the back of the garden, pretty much directly next to the tree, and we are all very worried that more bits will fall off.

 

We called the local council, but they do not get involved with trees in private gardens at all. What can we do to force him to have the tree inspected? Do we need to follow certain procedures? Can we get a court order and, if so, through which kind of court?

 

Please help, even if you can only answer some of my questions.

[HCR]

Go see a solicitor - you'll get a 30 min consultation for free anyway. There is a fair chance that your neighbour will be liable, at least partly. The fact that he was alerted to the danger beforehand, yet did nothing, is in your favour.

 

Be very wary of spending money up front unless you really have to.

 

The council does have the power (but not a duty) to get involved under Section 23 of the Miscellaneous Provisions Act 1976

 

23 Power of local authorities to deal with dangerous trees.E+W.(1)Where a district council, a London borough council or the Common Council [F1, or a county or county borough council in Wales]— .

(a)receives from a person appearing to the council to be an owner or occupier of any land in the area of the council on which a tree is situated a notice requesting the council to make the tree safe; and .

(b)considers that the tree is in such a condition that there is imminent danger of its causing damage to persons or property, .

the council may take such steps on the land, whether by felling the tree or otherwise, as it thinks are appropriate for the purpose of making the tree safe and may recover the expenses reasonably incurred in doing so from the person who gave the notice.

(2)Where such a council— .

(a)receives from a person appearing to the council to be an owner or occupier of land a notice requesting the council to make safe a tree on other land which is in its area and which appears to the council not to be owned or occupied by that person; and .

(b)considers that the tree is in such a condition that it is likely to cause damage to persons or property on the first-mentioned land; and .

©knows the name and address of no person appearing to the council to be an owner or occupier of the other land and either— .

(i)has made reasonable but unsuccessful enquiries for the purpose of ascertaining the name and address of such a person, or .

(ii)considers that in view of the imminence of the danger of such damage from the tree the delay involved in making enquiries or further enquiries about the name and address of such a person is unwarranted, .

the council may take such steps on the other land as are mentioned in the preceding subsection and may recover the expenses reasonably incurred in doing so from any person who was an owner or occupier of the other land when the council took those steps.

[Yorkshireman]

Another route ,, contact your own house insurer ,, explain the circumstances & ask if they would intervene as If you were indeed to employ a consultant / contractor to inspect the tree . recommend & or carryout works , within legal guidlines ,re adjoining boundarys & trees etc

then there would be a duty of care placed on you /your property too that consultant/ contractor, which would likely fall under your insurance if an incident occurred

 

your insurer could then choose to write to your neighbour asking for compensation & remedies to yourselves & your property , as it is unclear if you we're to replace your shed that another similar occurance might again take place

 

rgds Iain

Edited November 29, 2012 by Yorkshireman

[HCR]

Just a quick addendum - if you are not in England or Wales the law is different. Or at least it might be.

[WorriedNeighbour]

Am in London. Will follow HCR's advice and try to get a free initial consultation with a solicitor tomorrow. Also have a free appointment with an assessor from a local tree surgeon company to get an estimate, and he can probably already confirm that the tree is absolutely unsafe.

[Mark_Skyland]

Definitely speak to your house insurance company. We have carried out plenty of storm damage over the years and more often than not the insurance company of the householder whos property was damaged will pay out rather than the insurance of the tree owner.

[treequip]

Liability will come down to reasonable foreseeability.

 

As far as removing the tree and putting the damage right goes you can offer the tree owner the chance to clear up and make good and add the option that if they fail to do so you will take the works in hand and recover your costs through the courts

 

You can’t make them inspect the tree but you can formally remind them of the duty of care to others, which may help in recovery in any future events.

 

As others have said the council has powers it can use but the danger needs to be imminent .

[Shane]

Be careful!

From my experience you must seek professional legal advice.

 

If you incur any costs, you can then take legal action to recover those costs.

The problem is, even if the court find in your favour - if he (as a private individual) does not pay what the court orders it is very very difficult to get the money out of him, unless you can find out who employs him and have it deducted at source.

It's a minefield. If he's as much of an ar$ehole as first impressions suggest he probably knows this.

Must see legal whizz kid first.

[WorcsWuss]

Do not underestimate the power of your home insurers.

Your home is insured against damage.

They inspect and pay out on valid claims.

This sounds like a valid claim.

They don't want to stump up the cash themselves, they could well go after the owners' insurers. They may insist the tree is removed or cancel his insurance.

If he doesn't have home insurance [and many people don't] then they may pursue the legal route on your behalf.

Speak to them first!

I wouldn't waste my time on a solicitor, unless you've got all the time and money in the world to waste....

[Rich2484]

Do not underestimate the power of your home insurers.

Your home is insured against damage.

They inspect and pay out on valid claims.

This sounds like a valid claim.

They don't want to stump up the cash themselves, they could well go after the owners' insurers. They may insist the tree is removed or cancel his insurance.

If he doesn't have home insurance [and many people don't] then they may pursue the legal route on your behalf.

Speak to them first!

I wouldn't waste my time on a solicitor, unless you've got all the time and money in the world to waste....

 

Plus you will find that insurance companies use corporate lawyers not just average solicitors. Trust me they stop at nothing to get the results they need.