Tree on unregistered land.

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Gem123
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Tree on unregistered land.

Post by Gem123 » Tue Jun 30, 2020 8:39 pm

Hi all,

Today a council person has knocked on my door to tell me that the dead tree on the other side of my garden fence is dead and as it slightly leans over to our garden needs to be taken down, they are saying that as the other side of my fence is a public right of way, between the small path and my fence Sits the dead tree, They have said that the land is unregistered so we now have to pay for a tree surgeon to have this removed? I’m just confused as it’s not within our land boundary and we don’t own the tree or land that said tree is on. Any help much appreciated.

Thanks

ukmicky
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Re: Tree on unregistered land.

Post by ukmicky » Wed Jul 01, 2020 1:48 am

if the council want it removed ,as its not on your land so do not have to pay for it to be removed .


If you want it removed as the land is unregistered and finding the owner will be a problem ,you will have to pay for it to be removed as no one else will.
Any information provided is not legal advice and you are advised to gain a professional opinion

mugwump
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Re: Tree on unregistered land.

Post by mugwump » Wed Jul 01, 2020 6:36 am

It sounds like a bit of misunderstanding of what was said.
It sounds like he advised that the tree that was on the other side of the fence is dead. He then pointed out that it leans over your garden and if YOU wanted it removed then it would be at your cost. I think he was making it plain that even though there is a public right of way, the tree being on unregistered land means it is not the council's responsibility.

In other words, the council will deal with it if they think it's a danger to the Row but if you think it's a danger to your land then it's up to you.

MacadamB53
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Re: Tree on unregistered land.

Post by MacadamB53 » Wed Jul 01, 2020 10:02 am

mugwump wrote:
Wed Jul 01, 2020 6:36 am
It sounds like a bit of misunderstanding of what was said.
It sounds like he advised that the tree that was on the other side of the fence is dead. He then pointed out that it leans over your garden and if YOU wanted it removed then it would be at your cost. I think he was making it plain that even though there is a public right of way, the tree being on unregistered land means it is not the council's responsibility.

In other words, the council will deal with it if they think it's a danger to the Row but if you think it's a danger to your land then it's up to you.
it doesn’t seem like a misunderstanding to me - the council rep calling round unprompted is what has confused the OP...

Gem123
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Re: Tree on unregistered land.

Post by Gem123 » Wed Jul 01, 2020 10:03 am

I have spoken to said council person on the phone this morning and they have advised that they will not be doing anything with the tree and due to common law of unregistered ground we apparently own Half of the foot path and our neighbours the other half however the tree is in our half and if it was to fall and damage somebody’s property we would then be liable for damages. We however are very confused by this as we don’t own the land nor want the land said tree is on. Also the footpath is currently maintained by the council (cutting or grass and bushes along footpath). So surely they should be maintains the tree aswell?

Thanks

pilman
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Re: Tree on unregistered land.

Post by pilman » Wed Jul 01, 2020 12:30 pm

The council official is referring to the legal presumption that a property adjacent to a road or a river owns up to the mid point, even if the current title register issued by Land Registry does not show the red line drawn beyond the natural boundary of the property where a fence or hedge was erected.

The Local Highway Authority own the top surface of the public highways, which includes a footpath, but the soil beneath the top two spits (as one Law Lord described it) remains owned by the adjacent land-owners unless that can be rebutted by evidence that there is a legal owner of all of the soil of the road.

Many years ago there was a process known an Inclosure when the common fields in a Parish that were farmed in a multitude of long narrow strips owned by a great number of local people, were replaced when the private Acts of Parliament appointed a Commissioner to allocate the common land into larger parcels that were awarded to the various owners of the strips.

An Inclosure Award set out these parcels of land and also defined where there were to be public and private roads, including public bridleways and footpaths.

In the event that the right of way you refer to is a long standing public footpath allocated in an Inclosure Act dating from the early nineteenth century, that could provide evidence that the soil of the public footpath did vest in the Parish since that is what some of the Commissioners intended to happen.

That would be one way of establishing that the local council as successors to the Parish is the current owner of all of the public footpath if it was included in an Inclosure Award and the defined width included all the land between your boundary fence and the boundary fence on the opposite side of the path.

That would be the only way to make the council accept responsibility for removing the tree.

Someone would need to research the history of the public footpath, which may even have been established if a local landowner dedicated it as part of a development of the houses on each side of it.

It would need you to provide the evidence to rebut the legal presumption regarding ownership of half the width of the road, but if that cannot be done it does seem as though you may be the only person responsible for dealing with the current dead tree.

MacadamB53
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Re: Tree on unregistered land.

Post by MacadamB53 » Wed Jul 01, 2020 12:58 pm

pilman wrote:
Wed Jul 01, 2020 12:30 pm
The council official is referring to the legal presumption that a property adjacent to a road or a river owns up to the mid point, even if the current title register issued by Land Registry does not show the red line drawn beyond the natural boundary of the property where a fence or hedge was erected.

The Local Highway Authority own the top surface of the public highways, which includes a footpath, but the soil beneath the top two spits (as one Law Lord described it) remains owned by the adjacent land-owners unless that can be rebutted by evidence that there is a legal owner of all of the soil of the road.

Many years ago there was a process known an Inclosure when the common fields in a Parish that were farmed in a multitude of long narrow strips owned by a great number of local people, were replaced when the private Acts of Parliament appointed a Commissioner to allocate the common land into larger parcels that were awarded to the various owners of the strips.

An Inclosure Award set out these parcels of land and also defined where there were to be public and private roads, including public bridleways and footpaths.

In the event that the right of way you refer to is a long standing public footpath allocated in an Inclosure Act dating from the early nineteenth century, that could provide evidence that the soil of the public footpath did vest in the Parish since that is what some of the Commissioners intended to happen.

That would be one way of establishing that the local council as successors to the Parish is the current owner of all of the public footpath if it was included in an Inclosure Award and the defined width included all the land between your boundary fence and the boundary fence on the opposite side of the path.

That would be the only way to make the council accept responsibility for removing the tree.

Someone would need to research the history of the public footpath, which may even have been established if a local landowner dedicated it as part of a development of the houses on each side of it.

It would need you to provide the evidence to rebut the legal presumption regarding ownership of half the width of the road, but if that cannot be done it does seem as though you may be the only person responsible for dealing with the current dead tree.
hi pilman,

the OP can clarify, but it doesn’t read like the public footpath runs beside a road or river - in which case the legal presumption would not be relevant, yes?

kind regards, Mac

Collaborate
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Re: Tree on unregistered land.

Post by Collaborate » Wed Jul 01, 2020 4:40 pm

Is it not the case that as with roads, the adjoining landowner owns under the surface but the surface and everything above is the responsibility of the highways department/local authority?

If the LA say that OP is responsible for everything above the ground then presumably they can fence it all off.

Morgan Sweet
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Re: Tree on unregistered land.

Post by Morgan Sweet » Sat Jul 18, 2020 8:44 am

I was once advised by a solicitor that 'If the tree grows in the verge you might say it is the highway authority’s liability but they may argue that the roots are in the subsoil so therefore you are liable'. I would say that if it is an old tree then some of the roots are in the subsoil and some are in the top soil.

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