Neighbour's tree causing fence to bow

Neighbour's tree causing fence to bow

Postby agzol » Mon Oct 31, 2016 9:22 am

I expect this is already covered by an earlier topic but can't find any matches.
The garden fence (4 foot tall) is shared with our neighbour. The fence needs replacing but before doing so I want to resolve the issue concerning one of the neighbour's trees which is making the fence panel bow.
Had a discussion with them but they refuse to remove the tree (which is a wild plum tree with some small branches over hanging my property). The property is rented out.

Any suggestions on how best to deal with this?

Another of their trees is beginning to encroach on our property i.e. the trunk higher up is leaning over to out side. What can I do about this ?

In both cases the tree trunk diameter is around 15cm.

Thanks in advance
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Re: Neighbour's tree causing fence to bow

Postby Collaborate » Tue Nov 01, 2016 3:48 pm

Cut anything that overhangs the boundary - cut it to the boundary itself. Whether you can do anything about the fence depends on who can prove ownership. It would be far simpler were you to erect your own fence on your side of the boundary, touching the existing fence, and you will be able to prove ownership and seek compensation if next doors trees damage it.
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Re: Neighbour's tree causing fence to bow

Postby nigelrb » Sat Nov 05, 2016 8:01 pm

If possible, try to deal direct with the owner, assuming you can source his/her details. Generally, an owner is amenable to maintaining peace with neighbours, and at the same time could prevent his further expense in dealing with the existing fence, if, in fact, you are certain it is his responsibility.
Life is never what it seems; there is always two sides to every story.
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Re: Neighbour's tree causing fence to bow

Postby agzol » Sun Nov 06, 2016 10:14 am

The fence ownership is shared. No problem removing overhanging branches etc but in this case the trunk is bending over towards our property and pressing on the fence causing it to bow . The upper part of the trunk is now "invading" my space. The fencing needs to be replaced but I'm reluctant to proceed until we agree what to do with the tree.

I've had a couple of discussions with the owners (who don't live next door -they rent it out) and they just don't see why they should remove the tree (which I pointed out is just a wild offshoot from another plum tree).

I had a similar problem with their fig tree where the branches were over my property and the ripen fruit was dropping onto my patio and swing bench cover, staining both.
Eventually I just cut back the branches which they didn't like.
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Re: Neighbour's tree causing fence to bow

Postby despair » Sun Nov 06, 2016 1:50 pm

if the trunk is leaning into your space you can quite legally cut it off strictly at the boundary

people get so stupidly attached to trees that have no real value and that are growing too close to a boundary
and refuse to see the problems they create for neighbours

its the same with sycamore trees a neighbours garden will be covered in sycamore seeds and then they have the battle of dealing with fast growing saplings
that have rooted in the blink of an eye
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Re: Neighbour's tree causing fence to bow

Postby Funknut » Tue Dec 27, 2016 9:22 pm

As an alternative to dirtying your hands with the tree, and assuming you are a freehold owner, you could inform the neighbouring owner that unless they deal with it you will start charging them for the tree over-sailing your land. You own the right to the airspace above your land.
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Re: Neighbour's tree causing fence to bow

Postby MacadamB53 » Tue Dec 27, 2016 10:55 pm

Funknut wrote:As an alternative to dirtying your hands with the tree, and assuming you are a freehold owner, you could inform the neighbouring owner that unless they deal with it you will start charging them for the tree over-sailing your land. You own the right to the airspace above your land.
not possible - where did you get this from?
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Re: Neighbour's tree causing fence to bow

Postby Funknut » Tue Dec 27, 2016 11:06 pm

I got it from twenty years work experience.

"Under English law a landowner owns the airspace above his land (unless it has been expressly excluded from the lease or transfer to him) and it is therefore trespass if a developer or its contractor allows a tower crane jib to swing across land owned by other parties"

Same principle applies in this case. Those parts of the tree over the boundary are trespassing.
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Re: Neighbour's tree causing fence to bow

Postby MacadamB53 » Tue Dec 27, 2016 11:34 pm

Funknut wrote:I got it from twenty years work experience.

"Under English law a landowner owns the airspace above his land (unless it has been expressly excluded from the lease or transfer to him) and it is therefore trespass if a developer or its contractor allows a tower crane jib to swing across land owned by other parties"

Same principle applies in this case. Those parts of the tree over the boundary are trespassing.
same principle does not apply - cranes are wilfully manoeuvred whereas trees grow at will...
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Re: Neighbour's tree causing fence to bow

Postby Funknut » Wed Dec 28, 2016 4:05 am

Not so. The crane user never has the intention of the crane entering the neighbour's airspace; it is a side effect of the work it does, a consequence of poor planning.

In any event, it is not the why of it that matters but the fact of it. If your defence for a crane unintentionally crossing my airspace were that the wind blew it there overnight whilst it were weather vaning, I would nonetheless hit you with an oversailing fee for tresspass because I know of this law. Likewise, your negligence in allowing the tree branches to tresspass would similarly be dealt with were it my airspace and I were unhappy about it.

A tree growing uncontrollably is not force majeure.
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Re: Neighbour's tree causing fence to bow

Postby arborlad » Wed Dec 28, 2016 9:28 am

Funknut wrote:As an alternative to dirtying your hands with the tree, and assuming you are a freehold owner, you could inform the neighbouring owner that unless they deal with it you will start charging them for the tree over-sailing your land. You own the right to the airspace above your land.




A novel concept - but no more than that I'm afraid.
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smile...it confuses people
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Re: Neighbour's tree causing fence to bow

Postby Funknut » Wed Dec 28, 2016 2:07 pm

Well to both of you, I ask what your opinions are based on please? I was asked to qualify mine, which I did. I work in an industry where the matter of intrusion in to airspace commonly arises. Have either of you actually done any research to see whether I'm correct or not, or have you both taken leaps of faith?

Intrusion in to airspace covers any trespassing object that affects the landowner's proper enjoyment of their land. Why do you believe there are exceptions made for trees?
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Re: Neighbour's tree causing fence to bow

Postby Collaborate » Wed Dec 28, 2016 3:45 pm

Funknut wrote:Well to both of you, I ask what your opinions are based on please? I was asked to qualify mine, which I did. I work in an industry where the matter of intrusion in to airspace commonly arises. Have either of you actually done any research to see whether I'm correct or not, or have you both taken leaps of faith?

Intrusion in to airspace covers any trespassing object that affects the landowner's proper enjoyment of their land. Why do you believe there are exceptions made for trees?


Well, in your first post you said
you could inform the neighbouring owner that unless they deal with it you will start charging them for the tree over-sailing your land. You own the right to the airspace above your land.
which is wrong. Trespass caused by your neighbour's tree overhanging your garden does not entitle you to charge rent or claim damages for the trespass in the absence of any actual loss.

The trespass or nuisance is quite easily abated by the landowner cutting back. No other remedies are available unless your property has been damaged by the tree.

If you want to assert a hypothesis as a legal fact it is you who need to provide your authority. It is not for others to disprove your hypothesis. I base that opinion on having been a qualified solicitor for the last 24 years. Your experience as (I presume) a crane driver, or at least the building industry, gives you a particular insight that I am sure will add value to this site. However what applies to cranes does not necessarily apply to trees.

If you can produce some caselaw that demonstrates a right to charge a neighbour for their tree overhanging I'd be willing to look at it again, but my understanding from having researched this in the past is that the law provides a remedy of self-help for overhanging trees, and damages in the event they damage property, but not damages for trespass alone.

This is government advice:
https://www.gov.uk/how-to-resolve-neigh ... boundaries

and this is advice from a legal website:
http://www.inbrief.co.uk/neighbour-disp ... -by-roots/
http://www.inbrief.co.uk/neighbour-disp ... -branches/
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Re: Neighbour's tree causing fence to bow

Postby Funknut » Wed Dec 28, 2016 5:24 pm

It isn't rent or damages that one seeks. It is a licence agreement. The tree owner can either remove it from the neighbouring airspace, or will require permission (a licence) from the neighbour - if the neighbour presses the matter. To be clear, this approach has nothing to do with nuisance; it is trespass. It is not necessary to prove harm, and it can be committed through negligence not just through intent.

Furthermore, it is not just to cranes that this applies. I have assisted clients in obtaining licences from neighbouring land owners in relation to overhanging scaffold, and temporary bridges & walkways. The principle applies to anything which begins to intrude on the airspace of a neighbour. It would of course be very difficult to press in situations where the trespass began some time ago.

I had not asserted that it was for the two of them to disprove my suggestion. What I did was enquire why they were so quick to give one-line rebuttals without explaining why they disagreed. You have taken the time to explain why you disagree - thank you - and as you're a qualified solicitor may I enquire whether you know much about the relationship between curtilage and highways? I have my own quest for help, located in the General Topics section. I'd be grateful if you could suggest any possible remedy I might have.
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Re: Neighbour's tree causing fence to bow

Postby nigelrb » Wed Dec 28, 2016 9:53 pm

This has developed into a very interesting, and informative, thread.

I actually feel for the Original Poster (OP) because for him to approach the belligerent neighbour (whether verbally or in writing) and suggest that he charge him for invading his airspace, would do little to amicably resolve the intrusion. These matters are best sought to be resolved through resolution rather than legal recourse.

I wonder if both for the forum's and my own benefit, if the learned 'Collaborate' might offer some insight into the cost of launching such an action, including, of course, process fees, AND THEN the likelihood of the action being successful?
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