Tree trunk grows across boundary

Tree trunk grows across boundary

Postby DJLJ23 » Thu Jun 08, 2017 10:05 pm

I have had pruned (by professional tree surgeon) a beech tree, I'm guessing it was originally planted within my boundary, but over the years the trunk has grown to cross the boundary. I live in a national park, so cannot remove it. My neighbour is unhappy with the pruning and believes he has rights over the tree. The deeds (1975) make me responsible for the hedges and trees on the boundary, but state must be maintained to the vendors satisfaction.

So questions,
1) he is not the original vendor, both houses having been sold a number of times, so do the rights get pasted on?
2) If he does have rights, does it apply to the tree, as it would not have been on the boundary at the time?


many thanks
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Re: Tree trunk grows across boundary

Postby jdfi » Thu Jun 08, 2017 10:50 pm

Im not familiar with the effect the NP has on things, but other more knowledgeable members will be.

Is there a TPO in addition?
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Re: Tree trunk grows across boundary

Postby Collaborate » Thu Jun 08, 2017 11:10 pm

He has the right to prune it back to the boundary, but cannot kill the tree by so doing. The positive covenant is unenforceable as against you. so it is a red herring.
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Re: Tree trunk grows across boundary

Postby DJLJ23 » Fri Jun 09, 2017 7:54 am

Hi Collaborate, JDFI

Thanks for your responses, There is no TPO as such but being in a National park, any work on a tree over 10 cm thick at 1 meter, requires permission. Which i have.

Collaborate, on what basis would it be unenforceable?
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Re: Tree trunk grows across boundary

Postby Collaborate » Fri Jun 09, 2017 8:01 am

The 1975 provision compelling you to maintain the tree and hedge is a positive covenant. Such covenants do not directly bind any subsequent purchaser of the property in their capacity as property owner, whereas a restrictive covenant (to refrain from doing something) does. Conveyancers try and get round this by sellers getting an indemnity from buyers that they will observe and perform the positive covenants, but that is only enforceable as between seller and buyer.

If the neighbour wants to enforce the covenant they have to sue the original owner from 1975, who then through a chain of indemnities involves all subsequent purchasers.

It's difficult, messy, and sometimes impossible to do (as previous owners may have dies or can't be found). No one in their right mind would do this for the sake of a boundary tree.
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Re: Tree trunk grows across boundary

Postby DJLJ23 » Fri Jun 09, 2017 9:25 am

Collaborate, many thanks for your help, and lifting my concerns, much appreciated
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Re: Tree trunk grows across boundary

Postby DJLJ23 » Fri Jun 09, 2017 10:18 am

1 final question
If a tree is in the middle of the boundary, and was clearly there when the boundary was defined, but i,m responsible for the maintenance of the boundary, can i prune the whole tree or only my side?
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Re: Tree trunk grows across boundary

Postby MacadamB53 » Fri Jun 09, 2017 11:11 am

DJLJ23 wrote:1 final question
If a tree is in the middle of the boundary, and was clearly there when the boundary was defined, but i,m responsible for the maintenance of the boundary, can i prune the whole tree or only my side?
pruning the whole tree would involve trespassing onto the neighbour's property - which is unlawful - unless they permit entry.
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Re: Tree trunk grows across boundary

Postby DJLJ23 » Fri Jun 09, 2017 2:45 pm

Hi MacadamB53, thanks for your response,

The deeds give me right of access (with 7 days notice) to maintain the boundary, So the issue is where a tree lies across the boundary, was probably present 20+ years before boundary defined and i have responsibility for the boundary (hedges and trees), do they have any right to decide how the tree should be pruned. (other than me wanting to maintain good relations). thanks
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Re: Tree trunk grows across boundary

Postby ukmicky » Sun Jun 11, 2017 12:37 am

DJLJ23 wrote:Hi MacadamB53, thanks for your response,

The deeds give me right of access (with 7 days notice) to maintain the boundary, So the issue is where a tree lies across the boundary, was probably present 20+ years before boundary defined and i have responsibility for the boundary (hedges and trees), do they have any right to decide how the tree should be pruned. (other than me wanting to maintain good relations). thanks



You don't have to maintain the boundary even if its yours but can if you wish. If you do maintain it your neighbour has no say how it should be done. If the trunk of the tree is on your property the tree is yours and if the neighbour doesn't like the fact its crossing the boundary the law allows him to remove the growth provided he follows the law with protected trees.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Tree trunk grows across boundary

Postby DJLJ23 » Sun Jun 11, 2017 10:49 pm

UKMicky,
Thanks for your advice
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