Tree close to boundary

Tree close to boundary

Postby oz07 » Sat Mar 26, 2016 6:03 pm

I have a situation similar to the below post. I have also done a few forum searches so have picked up a little knowledge off this website (good resource!) What are your thoughts with the below?

I have a neighbour with a tree which is plated within 100/200mm of the boundary. The tree is a species which has pretty invasive roots. Apparently it is a short lived species also, due to dead wood, disease and being blown down. The tree is slightly listing at present although not towards my side, more like towards the boundary line.

My foundations will have to accommodate this unremarkable tree which was planted by previous owners of the property not the landlord who now owns. Discussions have resulted in the landlord wanting to keep the tree for I believe stubborn reasons, however my view is somewhat biased! I did offer what I believe to be a good deal all at my cost but hey ho.

Is there any way of “serving notice” of root tresspass before roots cause any damage? As in – your trees roots are on my land, if they cause any future damage (to property, drains, landscaping) I would like you to rectify? My (biased?) view is that the tree is using roots on my land to support itself. I believe I am within my rights to cut these roots back to the boundary? I understand if the action of cutting the roots back were to ultimately cause the trees death I may be liable, however it looks to be a grey area should the tree blow over after losing support of roots on my boundary? If not beforehand then after these roots are cut back could I then “serve notice” saying that any future incursion or damage will be their responsibility to remove?

Thanks in advance
oz07
 
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Re: Tree close to boundary

Postby MacadamB53 » Sat Mar 26, 2016 8:16 pm

Hi oz07,

Is there any way of “serving notice” of root tresspass before roots cause any damage? As in – your trees roots are on my land, if they cause any future damage (to property, drains, landscaping) I would like you to rectify?

sure - but he is not obliged to rectify just because you've "served notice".

you should, if you're that way inclined, put him "on notice" that if you have evidence his roots have caused damage to your property that you will sue him.

I believe I am within my rights to cut these roots back to the boundary?

yup

I understand if the action of cutting the roots back were to ultimately cause the trees death I may be liable...

yup

...however it looks to be a grey area should the tree blow over after losing support of roots on my boundary?

not really heard of this being a "grey area" - if the tree falls over because you've destabilised it you will be found liable.

If not beforehand then after these roots are cut back could I then “serve notice” saying that any future incursion or damage will be their responsibility to remove?

again, sure you could send such a letter but it is meaningless - they are NEVER responsible for removing the roots.

of course, that doesn't mean they mustn't feel responsible and could ask cut the roots back to avoid causing damage.

Kind regards, Mac
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Re: Tree close to boundary

Postby oz07 » Sat Mar 26, 2016 9:01 pm

Thanks Mac,

It doesn't sound like there is any benefit to me serving notice beforehand. Unless I word it in such a way which compels the owner to agree with my opinion. The tree would be a future liability for the owner should it damage the property. Whether highlighting this fact would then convince the landlord the offer I made was good is anyone's guess.

I mentioned the grey area because I believe it would be difficult to pinpoint a tree being blown over to a species which is susceptible to wind damage and is already listing. Obviously cutting roots back wouldn't help in matters, but whether it could be proved that this led to the demise of the tree should we experience gale force winds...

Cheers
Oz

Hi oz07,

Is there any way of “serving notice” of root tresspass before roots cause any damage? As in – your trees roots are on my land, if they cause any future damage (to property, drains, landscaping) I would like you to rectify?

sure - but he is not obliged to rectify just because you've "served notice".

you should, if you're that way inclined, put him "on notice" that if you have evidence his roots have caused damage to your property that you will sue him.

I believe I am within my rights to cut these roots back to the boundary?

yup

I understand if the action of cutting the roots back were to ultimately cause the trees death I may be liable...

yup

...however it looks to be a grey area should the tree blow over after losing support of roots on my boundary?

not really heard of this being a "grey area" - if the tree falls over because you've destabilised it you will be found liable.

If not beforehand then after these roots are cut back could I then “serve notice” saying that any future incursion or damage will be their responsibility to remove?

again, sure you could send such a letter but it is meaningless - they are NEVER responsible for removing the roots.

of course, that doesn't mean they mustn't feel responsible and could ask cut the roots back to avoid causing damage.

Kind regards, Mac
oz07
 
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Re: Tree close to boundary

Postby mr sheen » Sat Mar 26, 2016 9:39 pm

You do not have to tolerate the encroachment of the roots onto your land, so you can cut them back to the boundary. If the tree dies, the owner will have to prove on the balance of probabilities that it was your actions (as oppose to any other cause) that killed the tree and convince a Judge that you should have tolerated the encroachment on to your land. Since the death of a tree can be a slow process, it is pretty difficult to pinpoint exactly why it died so there is a risk of being sued...once he has the specialist reports that identify and specify your actions as the cause of death, if they are so bold.
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Re: Tree close to boundary

Postby oz07 » Sat Mar 26, 2016 11:06 pm

Thanks Mr sheen.

Was broadly my (selfish) attitude. I somewhat resent my ground being used to provide root structure to a tree which has a detrimental impact to myself. To be honest I don't think small terraced gardens are the ideal place to plant trees with invasive root systems, let alone within 200mm of the gardens boundary.

I think my best course of action may be to write to the owner and make them realise the future liability this tree may pose to them. Hopefully I can convince them that as an investor there is no benefit in keeping this and my offer of covering all removal costs plus renewing the whole knackered boundary fence is a genuinely good offer. The problem is the owner is keeping the tree out of stubbornness that's plans (which they opposed) have been passed. Perhaps I should also spell out that the building works will go on regardless of what happens with the tree?
oz07
 
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Re: Tree close to boundary

Postby APC » Sun Mar 27, 2016 9:56 am

Neighbourly compromise: suggest to your neighbour that you would be prepared to fund a replacement tree should they remove the existing. That way, any root severance would not be an issue and so none of this liability/notice malarkey. Of course they don't have to accept but they might.
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Re: Tree close to boundary

Postby ulu1kim » Sun Oct 30, 2016 4:36 pm

My boundary fence runs down the middle of a hedge for some 50 meters or so, I have a right of access to my property by foot or vehicle within 23 meters (shown in my deeds coloured in green), I cannot 'access my boundary fence nor access my garden as the landowner has claimed the hedge belongings to them. Half of the hedge is on their land half on mine, to be able to maintain my boundary fence from their side is impossible, the hedge is about 4 foot thick on their side. Am I right in thinking this 'hedge' is blocking my right of access? I believe i am entitled to remove the hedge on my side of my boundary fence. Thank Kim I want to put a parking area into my garden.
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