Tree in lower flat affecting my upper flat (I am their freeholder)

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jamietree
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Tree in lower flat affecting my upper flat (I am their freeholder)

Post by jamietree » Sun Sep 22, 2019 9:29 pm

Hello.

I live in a Tyneside flat (very popular in the north east). I'm in the upper one and my neighbour has the bottom one. If you don't know, in these flats the upper flat owns the freehold to the bottom and vice versa - you purchase the leasehold (about 900 years for ours). The garden comes under his leasehold (I'm the freeholder) and there is a tree that is beginning to brush my (upper) windows. He won't respond to my requests for it to be trimmed or capped. Do I have any right to do this work myself (as the freeholder, i.e. landlord of sorts)? Or is my only right the right to take him to court to force him to act?

Thanks
J

jamietree
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Re: Tree in lower flat affecting my upper flat (I am their freeholder)

Post by jamietree » Mon Sep 23, 2019 9:20 pm

hmmm, so people aren't familiar with tyneside flats??????????

ukmicky
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Re: Tree in lower flat affecting my upper flat (I am their freeholder)

Post by ukmicky » Mon Sep 23, 2019 11:24 pm

Your Tyneside flat is no different to other flats. You owning his freehold and him owning yours is the normal practise all over the country.

No you have no right to perform the action yourself and his lease trumps your freehold right.

Normally he is legally under no obligation to cut back his tree I’m afraid ,unless it causes damage. However It is possible in the lease their maybe a clause which you could use to force him to do .
Any information provided is not legal advice and you are advised to gain a professional opinion

jamietree
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Re: Tree in lower flat affecting my upper flat (I am their freeholder)

Post by jamietree » Tue Sep 24, 2019 10:34 pm

Hi, thanks for that. So in a normal boundary if a tree overgrows the boundary I have the right to trim it to the boundary line. So, in this case would I have the right to trim it to the boundary: which is effectively the level of his ceiling/my floor ???

ukmicky
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Re: Tree in lower flat affecting my upper flat (I am their freeholder)

Post by ukmicky » Tue Sep 24, 2019 10:54 pm

No because ownership rights to airspace do not extend out horizontally they extend up vertically.

The legal dictum is since the 17th century is ‘he who owns the soil owns up to heaven and down to hell,


The person who owns the rights to garden owns the rights to the Airspace above the garden so his tree can’t be trespassing as it’s his airspace not yours.

If your lease grants you rights to the roof space you own up to heaven but nothing below as his property is below and nothing out to the side.

His lease will grant him the rights down to hell only where your property sits directly above but in the garden where you have no property above the garden his rights extend virtically up to heaven and all the way down to hell.
Any information provided is not legal advice and you are advised to gain a professional opinion

Collaborate
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Re: Tree in lower flat affecting my upper flat (I am their freeholder)

Post by Collaborate » Wed Sep 25, 2019 7:32 am

The tree brushing against your window is probably a nuisance.

If the tree causes damage to your property you can claim damages from the owner for the cost of repairs and an injunction to abate the nuisance.

These would be expensive proceedings to take for a tree brushing against a window, and often leads to a piece in a national tabloid which people read to marvel at the huge sums of money wasted all for something as trivial as that.

And that is why the vast majority of these issues are dealt with by the neighbours having a conversation and dealing with it without resorting to court.

As your neighbour won't talk to you, if you can gain access to his garden I'd suggest you simply do the work yourself when he's not around. In theory he could claim damages from you but he would suffer no loss, so there'd be no damages, and he may not even realise what you've done.

arborlad
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Re: Tree in lower flat affecting my upper flat (I am their freeholder)

Post by arborlad » Fri Sep 27, 2019 6:52 am

jamietree wrote:
Sun Sep 22, 2019 9:29 pm
............ there is a tree that is beginning to brush my (upper) windows.

Thanks
J


Can these windows be opened?
arborlad

smile...it confuses people

Collaborate
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Re: Tree in lower flat affecting my upper flat (I am their freeholder)

Post by Collaborate » Fri Sep 27, 2019 8:11 am

arborlad wrote:
Fri Sep 27, 2019 6:52 am
jamietree wrote:
Sun Sep 22, 2019 9:29 pm
............ there is a tree that is beginning to brush my (upper) windows.

Thanks
J


Can these windows be opened?
I like your thinking.

jamietree
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Re: Tree in lower flat affecting my upper flat (I am their freeholder)

Post by jamietree » Sat Sep 28, 2019 9:41 am

Thanks for the (disappointing :)) replies, they sound sensible. I think stealth trimming or felling is in order as he's not there fore months on end (he let's it)

arborlad
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Re: Tree in lower flat affecting my upper flat (I am their freeholder)

Post by arborlad » Sun Sep 29, 2019 7:35 am

jamietree wrote:
Sat Sep 28, 2019 9:41 am
Thanks for the (disappointing :)) replies, they sound sensible. I think stealth trimming or felling is in order as he's not there fore months on end (he let's it)


I tend to get a little nervous when 'stealth' is mentioned - even more so when there is no apparent reason why can't act openly and honestly.
arborlad

smile...it confuses people

arborlad
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Re: Tree in lower flat affecting my upper flat (I am their freeholder)

Post by arborlad » Sun Sep 29, 2019 9:50 am

arborlad wrote:
Sun Sep 29, 2019 7:35 am
jamietree wrote:
Sat Sep 28, 2019 9:41 am
Thanks for the (disappointing :)) replies, they sound sensible. I think stealth trimming or felling is in order as he's not there fore months on end (he let's it)


I tend to get a little nervous when 'stealth' is mentioned - even more so when there is no apparent reason why you can't act openly and honestly.


...............also, what is the size and type of tree?................if you've got a 12" Ash tree growing 1' away from the building, this should be a cause of concern for both of you - and your insurers.

Additionally, and happy to be corrected on this, your situation of being above the land is no different to the more normal one of being alongside the land.
arborlad

smile...it confuses people

jamietree
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Re: Tree in lower flat affecting my upper flat (I am their freeholder)

Post by jamietree » Sun Sep 29, 2019 8:22 pm

When I say stealth i am joking (mainly) but the guy who owns it doesn't answer letters, is never there, just lets it out, the agents don't look after the place so... yes, i am tempted to just get on with it as as soon as it's x metres tall i have to tell my insurance and it is irritating that my insurance is impacted by his inability to act on basic and helpful requests.

But what do you mean by over the land being similar rights to next to it, i thought we'd established that i don't have the same rights?

thanks for the input though

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