Subsidence and my 100 year old Ash Tree

Subsidence and my 100 year old Ash Tree

Postby Buddy1086 » Tue Nov 06, 2012 5:13 pm

What a strange country we English live in.

I have a 100 year old, healthy Ash Tree in my well established garden. One of my neighbours bought their house some 40 years ago and then had an extension, which was built around 8 years ago.

The extension is now suffering from subsidence problems which their insurance company have proven is being caused by the roots from my Ash tree and apparently in law I am to blame and they are suggesting that unless I pay they will take me to Court. I also have to have my Ash tree chopped down immediately and at my cost. I just cannot see that the fault is mine and would welcome any views or opinions.
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Re: Subsidence and my 100 year old Ash Tree

Postby WILL*REMAIN*STRONG » Tue Nov 06, 2012 5:48 pm

Buddy1086 wrote:What a strange country we English live in.

I have a 100 year old, healthy Ash Tree in my well established garden. One of my neighbours bought their house some 40 years ago and then had an extension, which was built around 8 years ago.

The extension is now suffering from subsidence problems which their insurance company have proven is being caused by the roots from my Ash tree and apparently in law I am to blame and they are suggesting that unless I pay they will take me to Court. I also have to have my Ash tree chopped down immediately and at my cost. I just cannot see that the fault is mine and would welcome any views or opinions.

Have you spoken to your insurers? I think if the neighbour’s insurer says they have proof that your trees roots are causing the subsidence, they need to show this to you and your insurers.

The removal of the offending tree/s is always the first thing the insurer will come up with. But the removal of trees can cause heave, potentially leaving them with another problem.

http://www.inbrief.co.uk/neighbour-disp ... -roots.htm
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Re: Subsidence and my 100 year old Ash Tree

Postby ukmicky » Tue Nov 06, 2012 11:31 pm

In law you are only responsible for the damage if you knew or should have known the tree was causing damage . Once you know it is causing damage you are liable for any further damage after a reasonable time has passed should you not take action remove the nuisance. You didn't know it was causing damage so you are not liable for the subsidence.

If they have proven the damage is caused by the tree then you will have to take action within a reasonable time to prevent any future damage. If you don't they sue for a continuing nuisance.

what evidence have they that it is your tree.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Subsidence and my 100 year old Ash Tree

Postby withreason » Wed Nov 07, 2012 1:37 am

Surely there should be a second opinion?

Shouldn't the neighbour who knowingly built an extension which was near a large tree should reasonably have known the risks, the same as the "defendant" should have known? Why should anyone with a well established tree that has been there for a hundred years take responsibility? Ash trees are now in danger of a disease wiping them out!

http://www.forestry.gov.uk/chalara

For damage to be “reasonably foreseeable” it will be necessary to show that the “Defendant” (the person against whom the claim is brought) knew or ought to have known, that such damage would arise.

If there is only a vague possibility that a tree may cause damage, then the Defendant will not be liable for any such damage. The fact that a tree may be mature or very high or situated on clay is unlikely to be sufficient in showing that any damage caused by it was reasonably foreseeable.


http://www.inbrief.co.uk/neighbour-disp ... -roots.htm

Some cases ..

http://www.propertylawuk.net/nuisancetrees.html
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Re: Subsidence and my 100 year old Ash Tree

Postby despair » Wed Nov 07, 2012 2:05 am

It's unfair to blame the house owner for their extension
They have a perfect right to use their land as they see fit
If your tree or it's roots have trespassed beyond your boundary and caused damage then clearly something has to be done
You must also remember that extreme weather conditions of recent year's have played their part in tree roots seeking water further and further away from the trunk

I know of other well built houses that have been affected by the roots of long established Ash trees

Let your insurers sort matters with the affected house owners insurance
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Re: Subsidence and my 100 year old Ash Tree

Postby withreason » Wed Nov 07, 2012 2:15 am

The neighbour has lived in a house for 40 years with no problem from the tree? They build an extension 8 years ago, I really think the responsibility should lie with the neighbour as they knew the tree was there!

Trees Adjacent to Dwellings
When considering extending your property it
is important to look around the area on which
you want to build and check that no
obstructions exist. These could take the form
of underground drains, overhead cables,
existing structures
and trees.
Whilst the builder and architect can
overcome most difficulties, building near
trees can sometimes cause particular
problems.


http://hydeparkandwoodhouseonline.com/w ... tances.pdf

Who knows if the extension had sufficient foundations put in place? Knowing there was a big tree nearby surely they should have taken that into consideration?

I would be arguing that they are responsible as they should have known there could be a problem!
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Re: Subsidence and my 100 year old Ash Tree

Postby Treeman » Wed Nov 07, 2012 7:56 am

Unfortunately the tree was there first argument won’t stand up legally, the tree takes its victim as it finds it.

The results of the investigation should be checked, if there is more than one of the same species with roots implicated it's not unreasonable to ask for DNA testing to positively identify the tree in question.

While felling is an option it’s not the only option, the law requires the abatement of the nuisance, that can be done by lesser measures than felling.

Ask the tree officer to consider protecting the tree.
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Re: Subsidence and my 100 year old Ash Tree

Postby hzatph » Wed Nov 07, 2012 9:49 am

Take expert legal advice or refer to your insurance company. There is no need to rush into anything.
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Re: Subsidence and my 100 year old Ash Tree

Postby WILL*REMAIN*STRONG » Wed Nov 07, 2012 10:11 am

Your insurance company will advise you. What I would say is you need to show some willing. You may not have to cut your tree down, that is always going to be what the insurer paying out is going to opt for first. You most definitely could become liable for damage after it has been proven that it is your trees roots which are the cause of the subsidence.

Remember this is someone’s home and they will be very stressed and upset. Whilst I understand your tree may have much worth to you, your neighbour’s home needs to be fixed and they will only be following their insurance companies instructions.

I would leave this to your insurance now and see whether other options short of cutting the tree down are suggested.
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Re: Subsidence and my 100 year old Ash Tree

Postby Mojisola » Wed Nov 07, 2012 11:11 am

WILL*REMAIN*STRONG wrote: You most definitely could become liable for damage after it has been proven that it is your trees roots which are the cause of the subsidence.


But if Buddy takes action as soon as they prove his tree is the problem, he won't be liable for the past damage but they do need to provide proof.
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Re: Subsidence and my 100 year old Ash Tree

Postby WILL*REMAIN*STRONG » Wed Nov 07, 2012 3:13 pm

Mojisola wrote:
WILL*REMAIN*STRONG wrote: You most definitely could become liable for damage after it has been proven that it is your trees roots which are the cause of the subsidence.


But if Buddy takes action as soon as they prove his tree is the problem, he won't be liable for the past damage but they do need to provide proof.


Yes, you are spot on.

What I should have said in the above is "if they did not act" they then could be found liable for further damage.
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Re: Subsidence and my 100 year old Ash Tree

Postby hzatph » Sat Nov 10, 2012 1:14 pm

Wait until the fungus gets a hold of the tree and then it will probably be felled for free!
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Re: Subsidence and my 100 year old Ash Tree

Postby Treeman » Sat Nov 10, 2012 1:27 pm

hzatph wrote:Wait until the fungus gets a hold of the tree and then it will probably be felled for free!

Who is going to do that?
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Re: Subsidence and my 100 year old Ash Tree

Postby withreason » Sat Nov 10, 2012 5:23 pm

Treeman wrote:
hzatph wrote:Wait until the fungus gets a hold of the tree and then it will probably be felled for free!

Who is going to do that?


Nobody it seems! The Govt. will deal with young trees, but not mature ones as they are important to wildlife.

http://www.telegraph.co.uk/earth/earthn ... trees.html

http://www.bbc.co.uk/news/science-environment-20253767

http://www.forestry.gov.uk/newsrele.nsf ... B0003B4670

http://ntpressoffice.wordpress.com/2012 ... -fraxinea/

http://www.countryside-alliance.org/ca/ ... -published

The Action plan ..

http://www.defra.gov.uk/news/2012/11/09 ... e-disease/
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Re: Subsidence and my 100 year old Ash Tree

Postby Treeman » Sat Nov 10, 2012 6:16 pm

withreason wrote:
Treeman wrote:
hzatph wrote:Wait until the fungus gets a hold of the tree and then it will probably be felled for free!

Who is going to do that?


Nobody it seems! The Govt. will deal with young trees, but not mature ones as they are important to wildlife.

http://www.telegraph.co.uk/earth/earthn ... trees.html

http://www.bbc.co.uk/news/science-environment-20253767

http://www.forestry.gov.uk/newsrele.nsf ... B0003B4670

http://ntpressoffice.wordpress.com/2012 ... -fraxinea/

http://www.countryside-alliance.org/ca/ ... -published

The Action plan ..

http://www.defra.gov.uk/news/2012/11/09 ... e-disease/



You got that right.
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