Tree owner's liability for damage caused by roots

Tree owner's liability for damage caused by roots

Postby JohnP1950 » Sun Sep 20, 2015 5:27 pm

Another house, another problem. My partner and I moved into our house just ten weeks ago. It has a long garden and at the end we have a row of leylandii trees (about 25 feet tall) which were planted by the previous owners of our house.

Unfortunately, they planted them within 6 inches of the boundary fence which, in turn, is less than 2 feet away from my neighbour's garage. In other words, the edge of the tree trunk is just 2.5 feet my neighbour's wall.

We had plans to cut down the leylandii, but so far we haven't had time to get it all organised.

Then on Thursday last my neighbour came round to tell us that he had discovered cracks in his garage wall and floor caused by our trees. He invited us round to look and it seems pretty clear that it is our tree roots to blame. He had excavated a trench between one of our trees and his garage wall and there's a large tangle of thickish roots going under his foundations just where the main crack is.

I fear that the cost of repairing this is going to fall to us, even though we didn't plant the trees. It seems a little unfair (or unlucky) as we have only just moved in and we had no idea the damage was going to occur.

Additionally, I don't know whether all of the damage occurred since we have been here - he says it has, and that the cracks appeared very quickly last week.

The neighbour's foundations don't seem very deep. I think the construction of his garage was a bit shoddy, so shouldn't he be taking some of the responibility here? Trees and roots are a fact of life in a garden environment so surely he should have built his garage to withstand roots. Apparently our trees were planted about 5 years before he built his garage, so it's not like he didn't know there would be roots.

Do we have to pay for all of the repairs? Surely his house insurance should cover his repairs. Ours doesn't cover garden-related damage.

He also says the roots from our other trees are causing a nuisance in his lawn and he wants us to pay to have them all dug up and his lawn re-laid. Surely we are not liable for that as well? I've been on the other side of a leylandii dispute in the past, and there was nothing we could do about it. This all seems very unfair.

Please can somebody offer advice?
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Re: Tree owner's liability for damage caused by roots

Postby arborlad » Sun Sep 20, 2015 5:43 pm

JohnP1950 wrote:Additionally, I don't know whether all of the damage occurred since we have been here - he says it has, and that the cracks appeared very quickly last week.



I sense a terminological inexactitude from someone!
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Re: Tree owner's liability for damage caused by roots

Postby JohnP1950 » Sun Sep 20, 2015 5:49 pm

Thanks for the replay arborlad. So you think he's lying? If the cracks had appeared when our predecessor was here, I wonder why the neighbour didn't take it up with him. From what I can make out, they weren't on very good terms, and our neighbour seems the sort of chap to relish a good 'fight'. So far, he's been fairly polite and friendly with us though.

Our vendor made no mention of any dispute to our solicitor when we purchased.
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Re: Tree owner's liability for damage caused by roots

Postby mr sheen » Thu Sep 24, 2015 6:02 pm

Ooh...a buyer beware scenario. Leylandii planted by previous owner have now become your responsibility.
When buying property nowadays the survey often highlights potential issues with trees and leylandii planted near a border are such an issue. Often mortgage providers will point out the issue and may restrict mortgages in some cases.
I have replied to your question about actionable nuisance.....this may be a good example of actionable nuisance. If he makes a claim against you, pass it on to your insurance company and let them fight it out with him. Your insurance company may insist you get rid of the trees.
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Re: Tree owner's liability for damage caused by roots

Postby JohnP1950 » Fri Sep 25, 2015 11:04 am

Yes that's pretty much as I feared, Mr Sheen. Our survey didn't mention any tree issues at all. I wish it had.

My neighbour's building doesn't seem very well built, and his foundations are very shallow. Shouldn't it have been built to a better standard as he knew the trees were there when he built it. Surely he must bear some responsibility for the damage. As far as I can tell, there are no proper foundations under the walls. The whole thing seems to have been built on a flat concrete raft about 8 inches thick. My tree roots have gone underneath and lifted the concrete, cracking his single-brick wall in the process. I feel like I'm being held to ransom for his shoddy workmanship.

One final question. Are we also liable for the cost of having our tree roots dug up from his lawn, as they are not causing any damage to his buildings. They just show through his grass in places. His lawn is pretty uneven anyway, so I suspect he is just trying it on to get a new lawn for free.

I'll contact my insurance company as you suggest, although accoring to our policy document it doesn't cover damage to our garden and outluildings - it doesn't say whether it covers damage to neighbouring properties. I really could do without all this hassle at the moment.

Thanks again for the advice Mr Sheen.
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Re: Tree owner's liability for damage caused by roots

Postby MacadamB53 » Fri Sep 25, 2015 11:43 am

Hi John,

whether the damage to his wall was caused by the roots of your trees is a moot point.

you will not be found liable for any damage to date because you have only now been made aware of the nuisance you've been causing.

(the very fact he's left it until now has killed his claim).

now that you're aware you will be liable for any further damage.

he can either remedy the situation - ie take action to stop more damage occurring - (and claim the cost of doing so back from you), or leave it (and claim against you for any further damage).

you can either remedy the situation (at your own expense) or leave it (and be liable for further damage).

Kind regards, Mac
PS he will find it much easier to prove further damage if he repairs the wall now
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Re: Tree owner's liability for damage caused by roots

Postby JohnP1950 » Sat Sep 26, 2015 1:22 am

Hello Macadam53,

I phoned my insurance company today to see where I stand with them. I put exactly the point you made to their legal department. (I know it's been referenced quite a lot on this forum.) They said it's a common misconception that a householder only becomes liable after they have been informed of the liklihood of damage. Apparently, tree owners are responsible for all the trees growing on their land regardless; and the key question is whether the damage could reasonably have been foreseen.

The Legal guy did say that, in my case, the trees were so close to neighbour's garage that "a reasonable man" would foresee damage occurring sooner or later, and wouldn't need to be informed beforehand of the liklihood of damage. (He emphasized that his reference to "a reasonable man" is a legal term rather than a suggestion that I am not reasonable! :roll: ) And, to be honest, the thought that the trees might damage his wall or roof had occurred to me when we first moved in, which is one of the reasons we had intended to cut them down.

However, the insurance co. wouldn't say whether they would cover the cost of repairs. Apparently I have to submit a claim which then goes to a panel of assessors who will send someone out to inspect the damage. At least they haven't refused point blank (yet); and my neighbour is not being unpleasant about it, which makes a change after some of the neighbours I've had in the past.

Thanks very much for your advice MacadamB53. I do appreciate it. I'll post back when I know more.
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Re: Tree owner's liability for damage caused by roots

Postby mr sheen » Sat Sep 26, 2015 8:26 am

Yes that's how insurance companies work. They get details of the claim and then they assess it based on the individual details of the claim.
This is why we have insurance...we pass it on to them and they then 'sort it out' for us which often allows individuals to keep reasonable relations between the parties since it ceases to be personal. They will also 'loss adjust' the claim which may result in him being made an offer.

Thank you for confirming that 'reasonably foreseeable' damage criteria does in fact applies to trees, it is often confused on the forum.
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Re: Tree owner's liability for damage caused by roots

Postby MacadamB53 » Sat Sep 26, 2015 9:25 am

Hi all,

Thank you for confirming that 'reasonably foreseeable' damage criteria does in fact applies to trees, it is often confused on the forum.

the OP stated:

the trees were so close to neighbour's garage that "a reasonable man" would foresee damage occurring sooner or later, and wouldn't need to be informed beforehand of the liklihood of damage.

here's a couple of examples:

1. I know the roots of my tree are coming into contact with that wall so it would be reasonable to expect damage to occur in the near future.
2. I know that wall has been built near my tree so it would be reasonable to expect some of the roots of my tree will eventually come into contact with it and damage to occur afterwards.

example 1. illustrates my understanding of what "reasonably foreseeable" means.
example 2. illustrate what the OP has put forward.

which, if any, is correct?

Kind regards, Mac
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Re: Tree owner's liability for damage caused by roots

Postby JohnP1950 » Sat Sep 26, 2015 8:21 pm

Hello MacadamB53,

Unfortunately, as I understand it, I think both would be correct. I wish they weren't, but it seems reasonable that, if something one has sole responsibility for damages a neighbour's property, liability must rest with the owner of that "something", particularly if the damage was in any way foreseeable. I would have thought that damage would have been foreseeable at the time our vendors planted the trees, even before the roots had crossed the boundary.

Frankly, we should have foreseen the damage and acted sooner. We had intended to cur them down, but were banking on having a bit more time to do so.

After talking it all through with my other half, she pointed out that a court probably wouldn't even take account of the fact that he didn't build his garage more strongly. To make his garage tree proof would have involved extra cost to him, and why should he be burdened with extra costs just because his neighbours (our vendors) had planted trees too close to the boundary - an action which he had no say in.

I think we've just been unlucky (or foolish) - particularly with the timing of all this. I'm still waiting to hear more from my insurers.
Last edited by JohnP1950 on Sat Sep 26, 2015 8:54 pm, edited 1 time in total.
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Re: Tree owner's liability for damage caused by roots

Postby JohnP1950 » Sat Sep 26, 2015 8:49 pm

Roblewis, thanks for your comment on my thread about actionable nuisance. I hope you don't mind if I quote it here to keep it all together in the roots thread:

Roblewis wrote:Yes but he also  failed to cut them back before they caused significant damage ergo he may be anywhere from 0 to 100% liable in that he failed to adequately maintain his property.


My understanding from the insurance company's legal advisor is that the roots weren't his to maintain. Apparently, they remain the property of the tree owner even though they have crossed the boundary. He said that, unlike branches, a householder is not expected to resort to self-help with roots; and my neighbour could have applied to the court for an order to have the roots removed from his land (at the tree owner's expense). He said that my neighbour's failure to do so might leave him with a degree of liability, although that would be determined "on the facts of the case". He was a bit vague on exactly what he meant by that, but I guess we will just have to wait for the assessor's report.

If seems, therefore, that my neighbour could require us to cover the costs of removing the other roots from his lawn as well, even though they are not damaging any structures - just small patches of grass. Why on earth couldn't all this have happened before we bought the place.

Anyway, thanks everbody for your advice. I'll post back when there are any developments.
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Re: Tree owner's liability for damage caused by roots

Postby arborlad » Sat Sep 26, 2015 9:45 pm

JohnP1950 wrote:My understanding from the insurance company's legal advisor......



Have you told them this: 'Additionally, I don't know whether all of the damage occurred since we have been here - he says it has, and that the cracks appeared very quickly last week.'
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Re: Tree owner's liability for damage caused by roots

Postby APC » Tue Sep 29, 2015 10:56 pm

Must have great soil there. I reckon you should plant some marrows this winter and book yourself into some giant vegetable competitions next autumn.
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Re: Tree owner's liability for damage caused by roots

Postby JohnP1950 » Sat Oct 03, 2015 7:57 pm

arborlad wrote:
JohnP1950 wrote:My understanding from the insurance company's legal advisor......



Have you told them this: 'Additionally, I don't know whether all of the damage occurred since we have been here - he says it has, and that the cracks appeared very quickly last week.'

Yes, I mentioned it to the assessor who came round yesterday. He said it's unusual, but not outside the realms of possibility, especially with the type of raft foundation he has. Apparently the stresses can build up under the raft with no obvious sign of a problem, then all of a sudden the concrete fails which induces the cracks in the walls. Seems unlikely to me though.

Anyway, the assessor has to submit his report, but he said he will recommend the company pays for the repairs. Obviously I have to get the trees felled at my own expense, which is fair enough. We were going to do that anyway. So if it all goes through Ok I'll only have to pay the £500 excess, which is a lot better than the £8-10k I was expecting. Neighbour seems satisfied as well so it's all looking good so far.
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Re: Tree owner's liability for damage caused by roots

Postby JohnP1950 » Sat Oct 03, 2015 7:58 pm

APC wrote:Must have great soil there. I reckon you should plant some marrows this winter and book yourself into some giant vegetable competitions next autumn.

Just as long as they don't have giant roots!
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