Inherited an Issue

Inherited an Issue

Postby PinkFloyd » Thu Aug 02, 2012 4:30 pm

I will try to make this as succinct as possible.....

My partner and I purchased a property in Scotland and moved in at the end of June 2012. We were not told of any disputes. Approximately one week after gaining entry a chap knocked on our door - 'neighbour 1' He stated that our tree sited at the bottom of the garden was blocking light, causing mess in the winter, but more importantly, damaging his wall. He claims to have raised this issue with the previous owner several times over the 'years' This however was not in any official capacity.

'Neighbour 2' claims his patio has been disturbed by the tree roots and is also seeking resolution. He states they have telephoned the council, but again nothing official has been lodged. He claims a further party to the dispute,'neighbour 3' has also complained, but in their instance may have lodged official documentation.

The ultimate goal of all three parties it would seem is the removal of the tree. This is something I am amiable too, however at this time quotes to remove the tree, which does not include remedial work to gain access to said tree stand at over £1200. At the initial discussion there was mention of 'splitting the cost' however as it now appears a costly job the problem (and cost) has been firmly shifted to me.

My understanding of the law having taken some preliminary legal advice is that no party can pursue me for damages occurring prior to taken possession of the property. I am however liable for removing the tree only if it is proven to be causing damage.

My argument to the concerned parties is that they must accept some vicarious liability due to their failure to undertake proceedings in the previous 3-5 years. This is not a new issue and they have had ample time to explore the various friendly and legal avenues with the previous owner. Bottom line is that the previous owner told them to 'sod off' and they didn't have the moral fibre or backbone to pursue things.

My questions are:

1. If I leave the tree and it does cause further damage what can a court legally do, i.e can they attach earnings etc to force me to gather funds to remove?

2. Can the neighbours claim against their buildings policies for damage to walls, sheds, patios etc? This would seem the easiest route; they gain a new wall etc and the tree gets removed for fear of further damage.

Ultimately had I planted the tree, stood staunchly against its removal for many years I would fully expect to carry the full costs including damages. However I do feel my neighbours laziness, ignorance etc has contributed to this unfortunate situation, and with this being the case, they should contribute to the removal costs. Sadly my property solicitor doesn't feel the seller has acted negligently in the vending process so my only hope of recovering costs against the vendor is by way of the small claims process.

What are peoples thoughts?
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Re: Inherited an Issue

Postby hzatph » Thu Aug 02, 2012 7:54 pm

My thoughts are to consult the solicitor who acted for you. I don't know about Scotland but in England I would want my solicitor to check that the previous owners had answered the inquiries properly. In England there is no process for "lodging" disputes and the Local Authority would not get involved in these matters.
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Re: Inherited an Issue

Postby PinkFloyd » Thu Aug 02, 2012 8:12 pm

hzatph wrote:My thoughts are to consult the solicitor who acted for you. I don't know about Scotland but in England I would want my solicitor to check that the previous owners had answered the inquiries properly. In England there is no process for "lodging" disputes and the Local Authority would not get involved in these matters.


Thanks for your reply :D

The short answer is that I have consulted my solicitor and they've said it's a can of worms. The long answer is that there are two key points:

1. Does a 'dispute' over a tree come under the laws used to compile the missives used in Scottish law?

2. Was there ever a 'dispute'?

With regards to point one the solicitor has stated it is very much open to interpretation and could be a very quick way to spend money pursuing something that will never come to fruition. Point two is less likely to be impacted in house sale law, i.e it could be viewed as a separate issue to the house sale, thus making it easier to pursue, but ultimately it's 'proving' there was a dispute. My solicitor has stated that in some cases a recorded call between two parties discussing an issue they cannot agree on is a 'dispute', whilst in others it would require a trail of letters between solicitors to prove that the vendor knew about the tree, the issues it was causing, and that in no uncertain terms she was liable and was required under law to act.

Our thoughts this evening are that we may ask the neighbours to monitor the situation. If no new damage comes to light then we will not be removing the tree until we see fit, regardless of the annoyance factor for neighbours with light, leafs etc. This is due to the previous owner effectively being indemnified for the damages as they happened during her ownership and not ours. Obviously if fresh provable damage occurs then we would then have to reassess things.
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Re: Inherited an Issue

Postby victor508 » Thu Aug 02, 2012 9:04 pm

I would give them 2 options.

1. a four way split.

2. the previous owner,s option :lol:

Victor.
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Re: Inherited an Issue

Postby PinkFloyd » Thu Aug 02, 2012 9:15 pm

victor508 wrote:I would give them 2 options.

1. a four way split.

2. the previous owner,s option :lol:

Victor.


That to me Victor seems fair, but sadly I'm being told that as long as the sun rises and sets I am legally bound to deal with this tree as it's within my garden boundary. It would be very nice to find a case that has set a legal precedence whereby it was ruled that, due to collective negligence in non-pursual within a reasonable timescale resulted in the claimants having to contribute towards the defendant's costs.

This would be music to my ears, as it would not only force my neighbours to share the bill, but would also teach them that it's unfair to dump an issue on a new owner because they couldn't be bothered to deal with the matter in the preceding years.
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Re: Inherited an Issue

Postby hzatph » Thu Aug 02, 2012 9:36 pm

I think your solicitor have given you the answer.
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Re: Inherited an Issue

Postby kipper » Thu Aug 02, 2012 10:48 pm

It is not a dispute, it is called "putting on notice". However it doesn't appear that this has ever formally been done, inasmuch as there is no proof of notification. If there had been, then the neighbour could recover the cost of further damage from the previous owners of your property. Seeing as it seems they didn't, the previous owners did nothing abut the tree and seemingly have got away with it.

As it stands, the neighbours could formally inform you of the damage with evidence and put you on notice then you would become responsible, however until they do this you can do nothing about the tree and not be liable for the damage. The normal process would be for them to claim for the damage through their insurers and then this would lead to the insurers formally contacting you to advise you to remove the tree or you will become liable for future damage. The neighbours could do this themselves via letter however. Have you seen evidence of the neighbours' claims?
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Re: Inherited an Issue

Postby Roblewis » Thu Aug 02, 2012 11:03 pm

You need to discuss the Scottish Equivalent to the Sellers Property Information form ie the Missives. You have 3 witnesses to the problems and it is unlikely that the vendor did not know.

You also need to look at the common law duty of care as formed in Scotland. Not only if they could be proved they knew for the purpose of the missives they also knew that you would need to know with regards to their duty of care - the term in scots law is Delict I believe.

You need to decide what loss in value a chartered surveyor would allocate to your property at the time of purchase because of the dispute. Figures around 20-25% of the purchase cost are about par for the course plus damages also to correct the problem. These deceptions do not come cheap to vendors who are detected and found against. In my English case the total damages etc claimed approaches around 50% of the purchase price plus barrister costs, solicitor costs, AE Insurance premium and surveyor fees on top.

You have not inherited an issue but rather were deceived into purchasing one. Fraud is not a bad description but misrepresentation is the usual finding - the penalties are the same though.
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Re: Inherited an Issue

Postby PinkFloyd » Fri Aug 03, 2012 12:07 am

kipper wrote:It is not a dispute, it is called "putting on notice". However it doesn't appear that this has ever formally been done, inasmuch as there is no proof of notification. If there had been, then the neighbour could recover the cost of further damage from the previous owners of your property. Seeing as it seems they didn't, the previous owners did nothing abut the tree and seemingly have got away with it.

As it stands, the neighbours could formally inform you of the damage with evidence and put you on notice then you would become responsible, however until they do this you can do nothing about the tree and not be liable for the damage. The normal process would be for them to claim for the damage through their insurers and then this would lead to the insurers formally contacting you to advise you to remove the tree or you will become liable for future damage. The neighbours could do this themselves via letter however. Have you seen evidence of the neighbours' claims?


Thank you for clarifying. I have nothing in writing from anyone stating they are making any claim. I have however seen the damage and admittedly it does appear to be caused by my tree roots. I have taken pictures of this for future reference. If my neighbour(s) did approach their insurers and I was subsequently contacted and advised to remove the tree, could I refer this to my buildings insurer as it is a legal issue?
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Re: Inherited an Issue

Postby PinkFloyd » Fri Aug 03, 2012 12:11 am

Roblewis wrote:You need to discuss the Scottish Equivalent to the Sellers Property Information form ie the Missives. You have 3 witnesses to the problems and it is unlikely that the vendor did not know.

You also need to look at the common law duty of care as formed in Scotland. Not only if they could be proved they knew for the purpose of the missives they also knew that you would need to know with regards to their duty of care - the term in scots law is Delict I believe.

You need to decide what loss in value a chartered surveyor would allocate to your property at the time of purchase because of the dispute. Figures around 20-25% of the purchase cost are about par for the course plus damages also to correct the problem. These deceptions do not come cheap to vendors who are detected and found against. In my English case the total damages etc claimed approaches around 50% of the purchase price plus barrister costs, solicitor costs, AE Insurance premium and surveyor fees on top.

You have not inherited an issue but rather were deceived into purchasing one. Fraud is not a bad description but misrepresentation is the usual finding - the penalties are the same though.


Thank you. The problem I appear to have is my solicitor who undertook the purchase for me does not believe I have a case. To that end, as you evidently appear knowledgeable to these matters, whom do you advise I next contact?
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Re: Inherited an Issue

Postby hzatph » Fri Aug 03, 2012 8:00 pm

If you would like a second opinion see another a solicitor.
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Re: Inherited an Issue

Postby Roblewis » Sun Aug 05, 2012 10:42 pm

You need to talk to a solicitor experienced in Contract Law - not a conveyancing expert. It appears you may well have a claim but I am not very familiar with Scottish Law but here in England a barrister will bring the action under contract law and the Duty of Care.
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Re: Inherited an Issue

Postby victor508 » Tue Aug 07, 2012 9:47 am

Pink Floyd wrote:
If my neighbour(s) did approach their insurers and I was subsequently contacted and advised to remove the tree, could I refer this to my buildings insurer as it is a legal issue?


The tree on my daughter,s boundary (Her tree) Moved in high winds , it was leaning badly.

The roots lifted her neighbour,s brick wall out of the ground (30ft long wall by 6ft high.

The neighbour was worried about this tree , so persuaded her to take it down , as there were a lot of calls due to these high winds, she could not get through to her insurers.

So she called in a contractor on a sunday and he took it down.

Her insurance came out ,he said , the wall is down to the neighbour,s insurance.

You can,t claim for the tree as it had not fallen. ( the policy states covered for a falling tree not a fallen tree)

As to a legal issue making a difference , i can,t comment. others on here have a legal mind.

Victor.
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Re: Inherited an Issue

Postby hzatph » Tue Aug 07, 2012 3:31 pm

PinkFloyd wrote:If my neighbour(s) did approach their insurers and I was subsequently contacted and advised to remove the tree, could I refer this to my buildings insurer as it is a legal issue?


Not an insurance issue, at least for buildings insurance. If you have legal insurance then you could refer to that.
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