A common cause of disagreement between neighbours is damage caused by the encroachment of tree roots. Specialist property dispute resolution solicitor, Mike Hansom, considers some of the legal issues involved in claiming compensation. Mike can be contacted by email, or on 01225 462871.
See also: Liability for Tree Roots and Branches
Direct and indirect damage
Often, damage by tree roots is direct; caused as the roots exert pressure on structures such as drains, foundations and paths. But the damage can also be indirect, as roots draw water from clay soil, which then rehydrates following significant rainfall. This constant shrinkage and expansion may cause subsidence and heave in nearby structures. Even trees whose roots have not encroached across the boundary can contribute to this effect.
Whatever the mechanism, the resulting bill for remedial works for tree root damage can be substantial. In addition to underpinning or rebuilding, the cause of the problem must be remedied, often by felling the tree(s) or reducing its size to limit transpiration (reducing the evaporation from leaves lessens the amount of water the tree draws from the soil).
What is the legal duty on the owner of the tree(s)?
If you have trees on your property, you have a legal duty to take reasonable steps to prevent or minimise the risk of damage to neighbouring property. This duty arises not only if you know that roots are encroaching over the boundary, but also if you ought to have known about this, perhaps because of the size of the tree and/or its position close to the boundary. If you knew, or ought to have known, of this encroachment, and it is reasonably foreseeable that this encroachment will cause damage, then the legal duty is established.
The legal term for damage caused by tree roots is ‘nuisance’. It is important to remember that a neighbour can be held liable for a nuisance that began before they purchased the property – if they had knowledge of it (actual or deemed) and have failed to take reasonable steps to rectify the problem.
You need proof
Your assumption that the roots of your neighbour’s tree are the cause of the damage on your property is insufficient; you need to prove it. Lawyers refer to this as ‘causation’. There are factors unrelated to tree roots that can cause similar types of damage. Consider faulty construction or settlement/subsidence caused by some other factor. Even if tree roots are the cause, investigation may discover that the roots belong to a tree on an entirely different (or even your own) property.
Claims often require experts in different fields to assist the parties and the Court. An arboriculturalist (tree expert) can advise whether or not the tree in question caused or significantly contributed to the damage, in the same way that a surveyor and/or a structural engineer may be required to advise on the nature and extent of the damage and the rectification works required.
Claims against local authorities
Many claims involving tree root encroachment involve council owned trees causing damage on neighbouring private property. Local authorities are under a legal duty to have in place an ongoing programme of inspection and maintenance in respect of ‘their’ trees. As a result of this, it is generally much easier to establish that they are, or should have been, aware of the potential of damage, compared to a claim against a private neighbour. As long as you can show that the damage was reasonably foreseeable, and was caused or significantly contributed to by those tree roots, claims against local authorities often succeed.
What can I claim?
If the damage is ongoing and the owner of the tree(s) refuses to rectify the problem, you can apply to the Court for an injunction to ‘abate’ the nuisance – forcing your neighbour to take preventative steps, such as felling the tree(s) or managing it properly to prevent further damage.
Apart from any injunction required, your claim will be a monetary one for compensation. Most of the claim will be fairly obvious – the cost of rectification work such as underpinning, repairs to cracks, rebuilding walls and paths or relaying sections of a drain. Expert evidence may be required from a surveyor and/or a structural engineer and, subject to that, you will need to obtain comparative estimates for the cost of the work.
In addition to the cost of the rectification works, you may also have a claim for diminution in value of your property. Typically, this occurs where the property has become ‘tainted’ by the occurrence of subsidence, which means that it may become more difficult to sell for the same value than it would without the history of subsidence.
Another consideration is future insurance which, even if it is available, is likely to carry a significantly higher premium.
Shall I just claim on my buildings insurance?
It may be tempting to simply allow your home insurer to negotiate a settlement with your neighbour or the local authority. However, your insurer will be interested only in the insured risk, which is unlikely to include any claim for diminution in value resulting from subsidence.
That said, you should always notify your home insurer as soon as you are aware of any potential claim. The reason for this is that the policy terms will inevitably contain a provision that any claim must be reported within a specified time. If you have failed to report in time, your insurer can repudiate the claim. This may leave you in a difficult situation if you subsequently need to redirect the claim, or part of it, to your home insurer, perhaps because investigation reveals that a claim against your neighbour is unlikely to succeed.
Once your home insurer has been notified, you should proactively consider taking independent advice on whether you may have a claim for diminution. Your insurer will not cover the cost of this advice, but that cost must be balanced against the possible need to bring a claim for diminution, which could be substantial – sometimes as much as 20% of the value of the property.
Whatever your neighbour may tell you, there is no obligation on you to claim on your home insurance. Many people take initial advice from a specialist property disputes solicitor, who will be able to recommend experts in a variety of disciplines, depending upon the type of evidence required.
Despite the potential for litigation, if both parties are sensible, disputes can often be resolved quickly and at a limited cost. If there are issues which prove more difficult to resolve, as an alternative to litigation, the Court always encourages parties to engage in alternative methods of dispute resolution such as mediation. A mediator can help the parties to work to find a mutually acceptable way forward. The process is very often successful and is significantly less expensive than taking the case to Court.