Tree - not on my property but somehow mine... and not mine!

Tree - not on my property but somehow mine... and not mine!

Postby RoseRodent » Wed Sep 03, 2014 4:32 pm

This sort of goes back and forth between trees and boundaries, but the main thing that bothers me about the issue is a tree, so hopefully it's best here.

Background:
I'm in Scotland*. I bought a brand new house in 2001 direct from the developers. In 2011 the council stated that it had closed on its contract with the developers (never shared with us mere residents!) that any maintenance work in and around the public areas of the estate fell to the responsibilty of the residents after 10 years. The tree in question is planted on a piece of land marked quite clearly in our deeds as "public open space" even though it's only about 0.8m x 1.2m.

So, the issue is with maintenance of this tree. I have a much larger species of tree (cherry blossom) than anyone else, and it's breaking up my drive and my neighbour's drive and path. I cannot get the council to cut this tree as they say they aren't responsible for it. I asked if I can remove this tree and they say no because it's a public tree!! I am responsible for it if I don't maintain it and a branch drops on a person or property, but I am not allowed to maintain it by removing it - I can't understand this legal middle ground. Since I am in Scotland, I cannot just go for adverse possession by whacking a fence around this area, and since it was put there specially to boast of "public space" provision (even though it's a weed-ridden festival of doggie doo, it's official definition is "public open space" and they make claims in writing that nobody is more than x metres from a "public open space"), they aren't going to let me register to take it back.

I feel aggrieved that they have forced me to have this tree grow to a size at which I cannot maintain it (the first 10 years) and now I'm stuck with it just when it's a problem. If I was allowed to cut it during the first 10 years it would never have got this big or out of control. To add insult to injury, I am allergic to this species of tree, and it's the only one on the whole estate and it's 10cm from my property line. The period March to late August is a mist of antihistamines and sneezing.

It seems like the idea is that the tree belongs to everyone on my estate therefore it's not mine, so that makes it belong to everyone and nobody at the same time. Perhaps I can write to every person and ask them if they object and if they don't object in writing within 30 days I'll hack the tree?! I don't know!

Has anyone heard of this situation? All my research leads me to "If a tree is on your property, it's yours, if it's not on your property, it's not yours" and I can't see how there can be nobody responsible for it and the huge damage it's doing pulling up our concrete and slabs, and that it can belong to nobody yet not be free to remove. It's going to cost a fortune just to trim the branches to stop them banging on the top of my car and porch as I can't get to them, how did I get this financial responsibility for a tree I didn't buy or plant and isn't on my property? And I have to offer to return the trimmings to the owner, yet don't know how that would be.

Can anyone figure this out at all?

*About the Scotland thing, I have read in other posts that "this forum is only for England and Wales" but the information doesn't say that, it says any legal information will only be applicable to Enngland and Wales, therefore I didn't feel that meant you are prohibited from asking Scottish questions (hope not!), just that you may not get as many answers with as much expertise, and that if you didn't actively specify you weren't in Eng&Wal and then acted on the information supplied, you could have only yourself to blame!
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Re: Tree - not on my property but somehow mine... and not mi

Postby ukmicky » Wed Sep 03, 2014 9:50 pm

Who owns the land where the tree is,the council or the developers
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Tree - not on my property but somehow mine... and not mi

Postby jonahinoz » Thu Sep 04, 2014 5:55 am

Who owns the land where the tree is,the council or the developers

Hi,

Write to both, tell them that they will be responsible for any further damage caused by this tree. At least that will give you something "writen in stone", for when you do eventually find out who is responsible.

I have wondered about the Hay Fever thing. Could it be considered a disability that is being discriminated against?

John W
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Re: Tree - not on my property but somehow mine... and not mi

Postby arsie » Thu Sep 04, 2014 8:30 am

In a similar situation in England we tend to have a separate management company for the common areas and maintenance with every private property paying fees, all laid out as to proportion. The side of my drive was a border of our estate with a ten foot drop to a neighbour's garden. The management company was responsible for shrubs planted by a wall by my drive to look pretty. There was other communal stuff and flats too on this small 20-property gated estate.

Yours sounds like a different situation with this 'reverting to the council' and I think you need to see the contracts. It may be - and I am guessing - that rather than having a management company (which is a real pain in the a*se and often a source of real aggro - e.g. http://www.theguardian.com/money/2011/feb/12/peverel-property-management-tenant-rebellion) you in Scotland avoid this by having the common lands go to private ownership in some way.

In which case this large tree may well be in your ownership as well having a preservation order of some sort on it.

Cherry trees are often susceptible to disease even if apparently healthy and you might have the tree checked by your own specialist report - which will cost you money! - and this could then be used to argue with the local council tree people that the tree should be felled - more cost.

Just an idea.
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Re: Tree - not on my property but somehow mine... and not mi

Postby RoseRodent » Thu Sep 04, 2014 12:37 pm

Thanks, so far and I will try to go through some of the responses and address things:

"Who owns the land" - OMG I wish I knew!! It must be somebody, but it isn't me and it isn't the council. I don't know what is the best next place to ask - land registry of Scotland??! The developers stopped owning it in 2001 and the council stopped having responsibility for its maintenance (but may well have continued to own it) in 2011. That's when it fell into this weird no-man's land.

There was definitely no management company actually formed. I couldn't go to the meeting about mowing common grasses, but the outcome seemed to be no you cannot dig up the grass but yes you do have to mow it! It is not any individual's responsibility, it seems, but there must be someone who becomes liable if something horrible happens as a result of one of these "public open spaces" - if I were mowing mine and fell down a sink hole, someone owns that land. I can't see how it can be me if I have not also been allocated the right to change what is on it, unless it's an issue of planning permission or a special order of preservation on this tree.

Unfortunately there is an exclusion to laws on disability discrimination which explicitly bar the consideration of hayfever as a disability, regardless of how badly you are affected and whether the effect is seasonal or temporary. Which sucks. You could be hospitalised with severe pollen allergy and you cannot, in law, be disabled by it. I have no idea why they put this in, I understand that they don't want people bringing claims for a few weeks of sniffles, but if you otherwise meet the conditions of being disabled by your hay fever, why should it matter what the underlying cause is? That's legislation for you, so that doens't help me, sadly. I am actually disabled in various other ways so it's impossible for me to maintain this tree without ridiculous expense, i.e. I cannot just pop up a ladder with some shears and cut it every now and then,I have to hire labour, which I could claim is discriminatory on me as I bear greater expenses than the next man, but that's only if it's MY responsibility rather than our collective responsibilty as a group of residents.

On a slightly different note, what is the maximum penalty for cutting it down? What is the maximum penalty for cutting it back very severely but within "best horticultural practice"? Assuming anyone can suddenly work out it's their tree and get upset about it, if the worst that can happen is a £200 fine for cutting it down, it's more than worth it! I'll happily put an alternative tree there which is a more sensible size of canopy and root base so it's not pulling up my drive, and just acting then paying any fines which crop up may well be the cheapest route, if not the most ethically desirable.
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Re: Tree - not on my property but somehow mine... and not mi

Postby MacadamB53 » Thu Sep 04, 2014 1:20 pm

Hi Rose,

In 2011 the council stated that it had closed on its contract with the developers (never shared with us mere residents!) that any maintenance work in and around the public areas of the estate fell to the responsibilty of the residents after 10 years.

I might be wrong but you might be muddling things up a bit.

did the council maintain the public areas on your estate between 2001 and 2011?

Kind regards, Mac
PS the land with the tree, if not owned by the council and not part of your property, likely still belongs to the developer.
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Re: Tree - not on my property but somehow mine... and not mi

Postby RoseRodent » Thu Sep 04, 2014 2:08 pm

Yes, they did maintenance for the first 10 years, finishing in 2011. I am definitely confused, and sadly I am getting all information in bits and bobs because I am still waiting for a response from "Planning (trees)" about the actual tree, but their response time seems to be measured in months, not days. The only information I have is from the meeting about grass cutting, which I didn't go to personally, so it's very likely that I have become confused, I just don't know how to get unconfused. :wink:
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Re: Tree - not on my property but somehow mine... and not mi

Postby arsie » Thu Sep 04, 2014 2:56 pm

RoseRodent wrote:"Who owns the land" - OMG I wish I knew!! It must be somebody, but it isn't me and it isn't the council. I don't know what is the best next place to ask - land registry of Scotland??! The developers stopped owning it in 2001 and the council stopped having responsibility for its maintenance (but may well have continued to own it) in 2011. That's when it fell into this weird no-man's land.

Rose,
the simple answer to your question is, yes. (And until you know who owns the land you can't know who owns the tree.)

One useful commercial web site is here: http://landregistryservice.co.uk/index.php?page=service&act=list&country=3 My brief read of this finds that title deeds and plans of all new sales occurring since 1981 (or up to as late as 2003 depending where you are - see my list below) are available. Assuming your developer bought the land in the same time frame, you should be able to find their entries too - but not if they've owned it since before the operational date for your county. In that eventuality the old Sasine Register should help. If you do want to purchase deeds and plans you are better off using the official government web site http://www.ros.gov.uk/index.html where there is a lot more information. It all looks quite different from England and Wales.

Land Registers of Scotland inherited its county based operation from the old Sasine Register system. Each county has its own operational date that is a date when the modern land registration started in that particular county. Transactions prior to that date are not registered in the Land Register.

Operational dates are as follows:

01 Renfrew 6 April 1981
02 Dumbarton 4 October 1982
03 Lanark 3 January 1984
04 Glasgow 30 September 1985
05 Clackmannan 1 October 1992
06 Stirling 1 April 1993
07 West Lothian 1 October 1993
08 Fife 1 April 1995
09 Aberdeen 1 April 1996
10 Kincardine 1 April 1996
11 Ayr 1 April 1997
12 Dumfries 1 April 1997
13 Kirkcudbright 1 April 1997
14 Wigtown 1 April 1997
15 Angus 1 April 1999
16 Kinross 1 April 1999
17 Perth 1 April 1999
18 Berwick 1 October 1999
19 East Lothian 1 October 1999
20 Peebles 1 October 1999
21 Roxburgh 1 October 1999
22 Selkirk 1 October 1999
23 Argyll 1 April 2000
24 Bute 1 April 2000
25 Midlothian 1 April 2001
26 Inverness 1 April 2002
27 Nairn 1 April 2002
28 Banff 1 April 2003
29 Caithness 1 April 2003
30 Moray 1 April 2003
31 Orkney and Zetland 1 April 2003
32 Ross and Cromarty 1 April 2003
33 Sutherland 1 April 2003


All this in my humble Sassenach amateur opinion :) (I feel a bit like a teenage mutant ninja turtle!)
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Re: Tree - not on my property but somehow mine... and not mi

Postby MacadamB53 » Thu Sep 04, 2014 3:45 pm

Hi Rose,

Yes, they did maintenance for the first 10 years

is the road on the list of public roads?

if it isn't then the council have no duty to maintain and may have undertaken the 2001-2011 work as part of a contract which has now come to an end.

how are your boundaries described on your deeds? the land in question might be part of your property.

Kind regards, Mac
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Re: Tree - not on my property but somehow mine... and not mi

Postby jonahinoz » Thu Sep 04, 2014 5:40 pm

Hi,

Find somebody with a terminal disease, or someone looking at a long period in jail, and discuss your problem with them.

Or tether an ownerless goat to the tree overnight.

As for the hay fever matter, that sounds like discrimination by the legislastors.

they say no because it's a public tree! What is a "public tree"? Do they mean they cannot give you permission to fell it, because it's not their tree? Or that it is illegal to fell it? Is there a TPO on this tree?

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Re: Tree - not on my property but somehow mine... and not mi

Postby RoseRodent » Fri Sep 05, 2014 9:18 am

MacadamB53 wrote: is the road on the list of public roads?


Yes, it is. We have a large number of unadopted roads round here because the whole area was being rebuilt after closure of a massive industrial site when the recession fell and all works stopped, but are not "concluded" because the developers don't want to prejudice any active planning permission when they do want to sell their land or complete the work should that again become profitable. Most of the private roads are fenced in, but we are definitely a public road, there was a big dispute about that with regard to taxes and bin collection which was concluded in 2003 when the last house on the development was sold.

MacadamB53 wrote:how are your boundaries described on your deeds? the land in question might be part of your property.


It's described as "Public open space". There is a very definite red line around the bit where the tree sits, a little notch cut from the end of my drive and the end of the neighbour's path and the marking "public open space" and the bit which describes the property I have purchased it definitely shows my land on one side and the tree on the other. There is also a boundary fence there, which was there when I bought the house, so it would be very hard to argue that any aspect of it is unclear with regard to it not being mine, the lack of clarity is more with whose it therefore is. I wish now I had done as almost everyone else on the street did and pull up the planting they didn't want before it reverted to the council, but I had no idea that it was going to turn into the biggest tree on the estate by a factor of 2.5!


What is a "public tree"? Do they mean they cannot give you permission to fell it, because it's not their tree? Or that it is illegal to fell it? Is there a TPO on this tree?


Bascially all stuff which they are stalling for answers on. I was hoping there would be some register of TPOs which was compulsory to make available for public inspection at a given council office and I can go and look, but you have to contact the same tedious process as I have already been dealing with to ask if it has a TPO. Things are considerably simpler (though not actually simple) if it doesn't. My next move if nothing happens is to write and give notice of intended works and a 10 day period to respond to me halting works if it has a TPO (attach evidence) and if nothing happens in 10 days I will cut anything overhanging my property - which is a whole other question so I think it's easier to start a new thread on it than muddy the waters here.

As for the hay fever matter, that sounds like discrimination by the legislastors.


Yeah, although it is and it isn't, because legally it cannot constitute discrimination if the law on discrimination says it isn't. :(
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Re: Tree - not on my property but somehow mine... and not mi

Postby MacadamB53 » Fri Sep 05, 2014 9:30 am

Hi Rose,

how are your boundaries described on your deeds?

I mean the wording in the deed (not what the plan looks like).

Kind regards, Mac
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Re: Tree - not on my property but somehow mine... and not mi

Postby arborlad » Fri Sep 05, 2014 9:50 am

RoseRodent wrote:if nothing happens in 10 days I will cut anything overhanging my property - which is a whole other question so I think it's easier to start a new thread on it than muddy the waters here.



Probably best not to, with all the relevant background and history already in this thread.
arborlad

smile...it confuses people
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Re: Tree - not on my property but somehow mine... and not mi

Postby RoseRodent » Fri Sep 05, 2014 10:44 am

MacadamB53 wrote:Hi Rose,

how are your boundaries described on your deeds?

I mean the wording in the deed (not what the plan looks like).

Kind regards, Mac


I'm sorry if I am being dim but I don't know what you mean.

This is everything to do with boundaries or which might be to do with boundaries, and in fact it's almost every word of all documents for the property. (sorry about spelling, I am copy typing)

SW BDY adj plot 74 mutual 0.45m post and wire fence. NW BDY adj lot 77 inc mutual 1.8m open boarded timber fence and 1.8m screen fence. NE BDY adj plot 76 inc mutual gable.
This is the boundary with the "open space" SE BDY adj back of footway & public open space also inc 0.9m railings. Area in front of driveway is a no build area. Allow for sightline restrictions in area col purple. (the tree is not in "area in front of driveway nor in area coloured purple on the plan)

The other bit says "all and whole that plot of ground lying on the soutwest side of a footpath bounding XXX Road shown delineated red and marked "75" on the plan annexed and executed as relative heerto (hereinafter referred to as "said plan") Together with (one) the dwellinghouse forming number xx xxxxx street aforesaid and the whole other building ereceted or to be erected on teh suubjects hereby disponed with the parts, pivileges and perinents thereof (Two) all necessary rights of access to the subjects hereby disponed over roads, footpaths and service strips formed or to be formed by use within the development of which the subjects herebby disponed form part and (three) the whole right, title and interest of us the said xxxx council in and to the domiium utile of the subjects hereby disponed.

Then it says "In respect that hte railing forming the NE BDY of the suubjects hereby disponed where they adjuoins public open space have been rected wholly within said subjects, they shall be maintained by the feuar at the feuar's sole expense in all time coming. Then there's a load of stuff about what I can and cannnot do in the area coloured purple on the plan, which is another "publc open space" but it doesn't even adjoin my property so I have no clue why they feel they need to spelll out that I can't put various thingstaller than 1m upon it! The area with the tree on is in any case coloured blue, not purple, so I presume there is nothing of interest in the stuff about the purple area.
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Re: Tree - not on my property but somehow mine... and not mi

Postby MacadamB53 » Fri Sep 05, 2014 11:35 am

Hi Rose,

There is a very definite red line around the bit where the tree sits, a little notch cut from the end of my drive and the end of the neighbour's path and the marking "public open space"

SE BDY adj back of footway & public open space


so your SE boundary abuts the footpath and a "public open space" and the plan has the area with the tree marked as "public open space"?

if I've got that much right then it's pretty clear you don't own the tree.

was the grass cutting meeting held because the council aren't mowing the grass anymore?

have you checked the list of public roads to make sure it's not just heresay?

Kind regards, Mac
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