Impact of tree roots on my neighbour’s property?

[daltontrees]

If your tree causes a 'nuisance' then once once you are aware of that nuisance then you are liable for abating that 'nuisance'. The good old English Law of Tort as muddied by recent case history.

 

Sorry but I don't agree with this. As I understand it, you are liable for the damages and losses arising from nuisance from when they occur, not from when you become aware of them. Also tree owner is not liable for abating a nuisance, the more correct language is that a tree owner is arguably negligent for not addressing foreseeable damage, and then only if the damage materialises. In other words liability is only tested by the courts if something goes wrong. Nobody is ever obliged to remove a tree nuisance preventatively, except by a court of law.

 

OK, so I'm a pedantic so-and-so, but I feel better for straightening the record a little. If anyone doesn' think the distinction I make is important, ignore it. if you don't understand the distinction, please ask.

[Chris at eden]

Sorry but I don't agree with this. As I understand it, you are liable for the damages and losses arising from nuisance from when they occur, not from when you become aware of them. Also tree owner is not liable for abating a nuisance, the more correct language is that a tree owner is arguably negligent for not addressing foreseeable damage, and then only if the damage materialises. In other words liability is only tested by the courts if something goes wrong. Nobody is ever obliged to remove a tree nuisance preventatively, except by a court of law.

 

OK, so I'm a pedantic so-and-so, but I feel better for straightening the record a little. If anyone doesn' think the distinction I make is important, ignore it. if you don't understand the distinction, please ask.

 

All good comments Jules as always and I agree 99%. One small comment though. I think it was the Delaware mansions case down in London where they under pinned the whole building and not just the bit that was damaged. Reason was to prevent a continuing nuisance and proactively prevent future damage before it had occurred. It was way over the top but I think they won full costs on appeal. Spot on with the comment about foreseeable, I can't quite believe people still try to say they didn't know the trees could damage structures as a defence. Really?

[FatherJack]

Jules/Chris - I agree that my response was simplistic. And I won't get into the debate about proven liability, when a nuisance starts, when a lay-person could reasonably foresee etc. We have to leave some grey areas to enable the legal profession to make a few bob.

 

Though SL40C is now aware.....................

[peatff]

If the place was built 30 years ago shouldn't the architect have made provision for the conditions allowing for the fact there are trees there and therefore take responsibility for any consequences ? That's why you pay them so much.

[daltontrees]

Delaware is pretty good. It concludes that "the law can be summed up in the proposition that, where there is a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure may be recovered by the owner who has had to incur it".

 

I thighlights the difference between the generality of a one-off abatement of nuisance and an ongoing nuisance. I think in Delaware the tree remains in place and the nuisace therefofre continues and can be expected to do so.

 

Thanks for reminding me to look it over.

 

As regards lay-persons, I really don't think th courts to know very much about them, as was shown in the recent Stagecoach case. But really they wouldn't expect joe public to link shrinkable clays, shallow foundations, persistent moisture defecits and settlement. 3 of these are invisible an only determinable by the bravest of professionals.

[fagus]

]I] ] But really they wouldn't expect Joe Public to link shrinkable clays, shallow foundations, persistent moisture deficits and settlement. 3 of these are invisible and only determinable by the bravest of professionals.[/i]

 

I couldn't agree more. I was confronted a lot with "The tree is causing the subsidence." My usual reply was the neither of us has x-ray eye so without evidence of the above mentioned the tree stays.

[Chris at eden]

Jules/Chris - I agree that my response was simplistic. And I won't get into the debate about proven liability, when a nuisance starts, when a lay-person could reasonably foresee etc. We have to leave some grey areas to enable the legal profession to make a few bob.

 

Though SL40C is now aware.....................

 

 

Now this is pedantic but its important so i'll say it anyway. Cases have been won and lost on appeal by the inappropriate use of the word 'proven' in this type of case.

 

This type of case takes place in the civil area so there is no burden of proof as with criminal law. i.e. beyond resonable doubt. Civil litigation is based on the balance of probabilities. i.e. that there is more chance than not. for example, if there is a 51% or indeed a 50.01% chance that the damage was caused by the tree that is enough to win. This wouldn't come close in a criminal case such as TPO prosecution.

 

Its a point worth remembering when advising clients.

 

[Chris at eden]

If the place was built 30 years ago shouldn't the architect have made provision for the conditions allowing for the fact there are trees there and therefore take responsibility for any consequences ? That's why you pay them so much.

 

 

The current NHBC chapter 4.2 which makes provision for foundations near trees is dated 2010. Older versions make different recommendations for foundation depth, water demand, zone of influence, etc.

 

Therefore a building that is 30 years old would probably not have foundations to the current spec. If the guidance they had in those days was acceptable it would not have been changed.

 

You could assume that the builders went overboard with the foundation spec 30 years ago as a belt and braces type approach but in reality this wouldn't happen. Concrete is expensive so builders will usually install foundations to the minimum dept to meet NHBC and building regs and to be fair you can't blame them. If the experts say this is ok then why not.

[Chris at eden]

There was a case last year i think, the title escapes me so sorry about that. the defendent said the same. How can i be expected to know that trees cause damage to buildings. The barrister clocked that she was reading the guardian i think and asked if she read it all the time. She said yes. He went through the archives and found that there had been something like 40 or 50 articles in that paper over the last couple of years which related to tree related subsidence. She lost the case based on that. Not that you should know about the mechanics of tree related subs but that you should at least be aware that it can happen. How many clients ask you to look at the tree as they are worried that the roots will cause damage. This post was started by a laymen who was obviously aware of it.

 

Mortgage reports are a dark art and shouldn't be approached without appropriate training but i love doing them. They are my favorite type of report to do. Its a shame that all the subs investigations are locked out by the bigger companies as they are also good and in some ways easier than the damage prediction stuff carried out for mortgage approval.

 

[daltontrees]

There was a case last year i think, the title escapes me so sorry about that.

 

Khan and Khan v Harrow and Kane 2013