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Post by Mikey » Thu Dec 14, 2006 11:01 am

Hi Guys

I would really appreciate any guidance you can offer on what has now become quite an epic, and not to mention stressful, problem.

A neighbour's mature Cherry tree, originally planted some years ago adjacent to my mother-in-law's 180cm boundary wall (but solely on the neighbour's land) has done the inevitable. The large roots have found their way under the wall's foundations and half way across the garden. On their way they lifted the wall and caused a series of large cracks running some 5 metres along the wall. The wall was weakened although, in my opinion, not beyond repair.

The neighbours inherited the property from a family member (they were always around and the trees had been mentioned to them regularly but they said they were unable to do anything at the time because the property wasn't theirs). When they finally took over the property they were again informed that the trees were causing problems and they removed most of the trees - but left the Cherry in "because it looked nice".

We told the neighbour two years ago that the tree roots were causing a crack in the wall and they informed their insurance company who sent out loss adjusters and after requesting further information (over 12 months) and making some encouraging initial comments concluded that they were not the insurers during the period in which the damage had occurred. We approached the neighbour's previous insurers directly who, after another 9 month delay, decided to play hard-ball and insist neither they or their insured are liable for the damage and cite the neighbour's "no particular knowledge of tree roots" and that they "had removed some vegetation when they first took over the property" as reasons.

A short time ago the local council became involved (strangely enough a report had been made about an unsafe structure shortly after the insurance company's letter had come through "strongly refuting liability", coincidence?). We were forced to demolish the wall because it had become dangerous, it had been shored up for some time. We demolished the damaged part plus other parts which relied on the damaged section for support, approximately 12 metres of wall. At the same time we exposed the roots which, without a shadow of a doubt, belong to the tree in question - the tree trunk is only 40-50cm from the wall. It is going to cost well over £5000 to rebuild the wall and reinstate the garden. A structural engineer's report commissioned by my mother-in-law primarily blamed the tree roots with soil conditions/earlier tree-removal as a secondary cause.

My mother-in-law's insurers do not cover boundary walls and refuse to get involved and so we have had to employ a solicitor who's letters just keep being passed off with "strongly refute liability" responses.

The neighbour was made fully aware of the problems with the trees and with this tree in particular. They were given ample opportunity over the past two years to do something about it but they chose not to because "they would take the tree out when the wall was rebuilt after the insurance company has paid out" and they didn't see the problem as theirs because "they didn't plant the tree". Their delay resulted in a wall they didn't own having to be demolished and then expect someone else to pick up the bill.

The way I understand it is if you own a property, you also own the problems with that property. Whether you plant a tree or not, any problems caused by that tree are your responsibility, or do I have an over simplistic approach to life?

How can the insurance company say they do not accept liability when the cause is so obvious?

Thanks in advance.

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Post by Treeman » Thu Dec 14, 2006 6:45 pm

Cherry trees are prone to surface rooting and damage to lightly loaded structures is not uncommon.

English law makes it difficult for you to hold them responsible for a situation of which they had no knowledge (allegedly). This is want the insurance company’s mention of “no particular knowledge of tree roots” is about.

From the moment you notify them (in writing is best) of the ongoing damage they are responsible for any elevated cost of cure. You need to gather all the correspondence and photographic evidence you can.

The case you need to look at is called Delaware Mansions Ltd. v. Westminster C.C.

The relevant part of Delaware is
"where there is a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure may be recovered by the owner who has had to incur it".

Now comes the hard part. It’s going to cost you to get them to pay up. You are at the mercy of the court and while it might not go your way in your favour you have the refusal to remove the tree. Your ongoing efforts to resolve the matter amicably will also help you when it comes to deciding costs.


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Post by Kaz » Sat Feb 10, 2007 6:38 pm

I am not the only sorry individual who is exasperated at the lack of justice on this topic then. I also have a neighbour who is avoiding financial liability on a tenuous claim of ignorance. I too am expected to foot the £2,500 bill for my wall to be demolished and to add insult to injury my insurance premiums are affected in this connection and I have been advised to replace the wall with a fence - so my boundary "wall" is now downgraded. It is the law that needs changing to protect people, or we are hostage to our neighbours planting whims and self indulgences. There needs to be an avenue for financial recompense to be extracted, it is outrageous that these people avoid liability. Lobby your local M.P., I have.

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Post by danensis » Thu Feb 15, 2007 5:42 pm

What is worse is that once you have involved your insurers, and mentioned the S word, then you are stuck with that insurer, as no-one else will insure you, and they will hike up the premiums.

When we bought our house the surveyor mentioned the neighbours trees, but said they weren't causing a problem at the time (although that later turned out not to be true). The mortgage lender insisted on my solicitor sending a warning letter to the neighbour saying words to the effect of "your trees may or may not be causing a problem, and removing them may cause as many problems as leaving, but at elast you are now ware that the posibility exists and its up to you to take the appropriate action". However when the subsidence emerged the insurars claimed that this wasn't sufficient and refused to reclaim my excess from the neigbours insurers. I have the suspicion that buildings insurers have a "knock for knock" agreement like they have for motor insurance and will not take action against each other.

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