Boundary issue

[kevinjohnsonmbe]

Anyone come cross a situation like this before?

 

Sorry if it’s a big long winded but I’m hoping to paint as full a picture as possible.

 

Mature Ash growing in an elevated position on a former agricultural boundary hedge (soil and granite.)

 

Previously either side of the boundary hedge would have been agricultural, through the 60’s and 70’s both sides were developed for housing. The early development was rather exclusive large detached houses with big gardens on the one side, shortly followed by rather less grand semi-detached estate style hosing with considerably smaller gardens on the other side of the boundary.

 

Without getting into the debate over ‘which came first, the house or the tree’ and the moral / arboricultural / ecological arguments for retaining the tree which will send us into ever decreasing circles, the tree is now too large for the environment in which it grows. Personally, I see it as a shortcoming in the planning consideration where trees are ordered to be retained in former agricultural boundaries which are now residential. Had it remained an agricultural boundary the entire length of the hedge would have been subject to thinning / reduction by the farmer and probably would never have grown to it’s current girth which is a significant issue for the homeowner.

 

So, it’s a small garden semi-detached house owned by an elderly couple attempting to sell and move closer to family. Previously, they have managed to agree with the neighbour that an arb team crown clean and remove 1 leader leaning well into their garden. That was some years ago and, as you’d expect, the regrowth is now almost touching the house again. The house is on the market, 3 previous viewings have resulted in the prospective purchaser expressing concern over the tree.

 

The neighbour in the grand detached house with extensive gardens is not at all concerned (although they ought to be looking at the lateral growth and summer house below.)

 

The estate agent and solicitor acting for the vendor, it would seem (lazy??) are unable to define exactly where the boundary is – centre line of the hedge, inside face or outside face. Given that if it’s not clearly defined, it would be reasonable to assume it is the centre line, and if that is true, then each party has joint ownership of the tree (if it grows on the centre line.) In this case, the majority (loosely 2/3) of the tree grows to the side of the hedge off the centre line towards the smaller house whose owners want to reduce / remove. A meeting is booked to discuss the issues with the owners of the large house but early indications are that they may be reluctant.

 

My initial thoughts: If unable to clearly identify the line of boundary, the homeowner wanting to reduce / remove can legitimately do so to a vertical line above (for arguments sake) the inside face of the stone bank. However, to do so will inevitably destabilise the tree to a dangerous extent and may lead to later collapse or limb failure leading to damage in the other neighbours garden for which it might be argued, the instigator of the reduction has liability. So the common law right to remove back to your boundary is well established, but when doing so leads to consequential failure where does that leave us? It seems a bit murky in law.

 

If it can be established that the centre line of the hedge is the boundary, the homeowner with 2/3 of the tree inside their boundary would be the owner of the tree.

 

I have a plan in mind, appreciate any input from out there in Arbworld.

[tarzan]

The roots of the hedge is the boundary line and

 

 

 

Choose a job you love, and you will never have to work a day in your life.

[kevinjohnsonmbe]

Sorry Tarzan, I think that's a regional dialogue confusion... When I refer to a 'hedge', in this instance, it's a stone and earth bank (wall if you like) upon which the tree grows.

 

"...In Cornwall, a hedge is generally a built structure or bank with or without a stone facing. Frequently, these are topped with woody trees, plants and shrubs and, sometimes but not always, form hedgerows. They have defined our landscape for centuries and today provide a distinct local identity quite different from other areas of the country where hedgerows are more common..."

[Marc Lewis]

If the owners of the larger house do not mind what happens to the tree, could you get them to sign a letter to this and crack on with the other home owners wishes?

[kevinjohnsonmbe]

Marc,

 

The neighbour in the grand detached house with extensive gardens is not at all concerned about the potential hazard the tree poses to them(although they ought to be looking at the lateral growth and summer house below.)

 

A meeting is booked to discuss the issues with the owners of the large house but early indications are that they may be reluctant. to agree to any reduction / removal

[skyhuck]

Are your wanting a financial contribution from those in the big house, or just their consent to carry out the works??

[kevinjohnsonmbe]

Whoops, pressed send too soon! I don't get a warm feeling that they'd agree to a disclaimer, the other option is to inform them of the intention to reduce and potential for subsequent destabilisation which they should seek to assess through professional advice. That's the legal bit I've been looking at. In that way they are informed and have the option to take avoiding action if they choose to do so. If they choose not to, it may be seen that they ignored a potential hazard and therefore assume some liability.

[kevinjohnsonmbe]

Sky, I get the early impression (brief phone call) that they will oppose the proposed work (meeting next week), sharing the cost is a pretty slim chance but it's the other neighbour that has the safety concern and is having bad feedback from viewings. I feel for them really, can't sell and move because of the tree, if they stay they're still deeply troubled by the size and prominence of the tree. Rock & hard place!

[Gary Prentice]

Anyone come cross a situation like this before?

 

Sorry if it’s a big long winded but I’m hoping to paint as full a picture as possible.

 

Mature Ash growing in an elevated position on a former agricultural boundary hedge (soil and granite.)

 

Previously either side of the boundary hedge would have been agricultural, through the 60’s and 70’s both sides were developed for housing. The early development was rather exclusive large detached houses with big gardens on the one side, shortly followed by rather less grand semi-detached estate style hosing with considerably smaller gardens on the other side of the boundary.

 

Without getting into the debate over ‘which came first, the house or the tree’ and the moral / arboricultural / ecological arguments for retaining the tree which will send us into ever decreasing circles, the tree is now too large for the environment in which it grows. Personally, I see it as a shortcoming in the planning consideration where trees are ordered to be retained in former agricultural boundaries which are now residential. Had it remained an agricultural boundary the entire length of the hedge would have been subject to thinning / reduction by the farmer and probably would never have grown to it’s current girth which is a significant issue for the homeowner.

 

So, it’s a small garden semi-detached house owned by an elderly couple attempting to sell and move closer to family. Previously, they have managed to agree with the neighbour that an arb team crown clean and remove 1 leader leaning well into their garden. That was some years ago and, as you’d expect, the regrowth is now almost touching the house again. The house is on the market, 3 previous viewings have resulted in the prospective purchaser expressing concern over the tree.

 

The neighbour in the grand detached house with extensive gardens is not at all concerned (although they ought to be looking at the lateral growth and summer house below.)

 

The estate agent and solicitor acting for the vendor, it would seem (lazy??) are unable to define exactly where the boundary is – centre line of the hedge, inside face or outside face. Given that if it’s not clearly defined, it would be reasonable to assume it is the centre line, and if that is true, then each party has joint ownership of the tree (if it grows on the centre line.) In this case, the majority (loosely 2/3) of the tree grows to the side of the hedge off the centre line towards the smaller house whose owners want to reduce / remove. A meeting is booked to discuss the issues with the owners of the large house but early indications are that they may be reluctant.

 

My initial thoughts: If unable to clearly identify the line of boundary, the homeowner wanting to reduce / remove can legitimately do so to a vertical line above (for arguments sake) the inside face of the stone bank. However, to do so will inevitably destabilise the tree to a dangerous extent and may lead to later collapse or limb failure leading to damage in the other neighbours garden for which it might be argued, the instigator of the reduction has liability. So the common law right to remove back to your boundary is well established, but when doing so leads to consequential failure where does that leave us? It seems a bit murky in law.

 

If it can be established that the centre line of the hedge is the boundary, the homeowner with 2/3 of the tree inside their boundary would be the owner of the tree.

 

I have a plan in mind, appreciate any input from out there in Arbworld.

 

Kevin, I think that with the tree being on the boundary line, each party becomes an owner 'in tenant'. I think that's the term anyway. My copy of Mynors is at work. Because of that, certain legalities apply.

 

Any actions that caused a loss to the other party would invoke a liability, so invoking the common law rights would be imprudent.

 

Mynors did write a great deal on this subject, as it's not that uncommon, but I can't remember all the details. I'll have a read up and attempt to summarize the facts for you.

[aspenarb]

The problem you have with with boundary disputes is the scale of the o/s maps. Its virtually impossible to determine exactly where any boundary line actually is. The thickness of a line can represent 1 meter which is why judges in court cases regarding boundary disputes ask the parties to go away and try to resolve these matters themselves.

 

Bob