Liability for tree roots and branches

There is little doubt that trees enhance the enjoyment of our gardens, as well as supporting wildlife. However, in the modern built-up environment, there is fierce competition for space. As trees grow, encroaching roots and overhanging branches can extend beyond the legal boundary into neighbouring property, sometimes causing inconvenience, damage or even injury. Here are some tips to help you avoid problems.

Duty of care

You owe a duty to your neighbours to take reasonable care to prevent your trees causing damage or personal injury. A prudent landowner should routinely inspect the trees near their boundaries and take appropriate steps such as removal of dead or broken branches which represent a risk.

Liability for damage

You are likely to be liable for other kinds of damage caused to your neighbours’ buildings, e.g. tree root damage to foundations. Where this can be proven you could be compelled through court action to ‘abate the nuisance’, which may include removal of the tree and payment of compensation. Most home insurance covers this kind of risk.

Can I cut back roots and branches?

If planted on your land, the tree is yours, but any part that extends over the boundary line will be an encroachment. It does not matter how long these branches and roots might have been there – they will acquire no legal right to remain on your neighbour’s side. The general position under the common law is that a neighbour can cut back branches or roots on their side, up to the boundary line. Usually, they cannot compel the owner of the tree to do this work, but are entitled to undertake it at their own cost. However, there are exceptions, such as when there is a risk of injury or damage to property.

Communication

Anyone pruning their neighbour’s tree is under a duty to take reasonable care and may be liable if they cause undue damage, or the works result in the tree becoming unstable. We would always recommend a policy of amicable and clear communication between neighbours, and for the work to be done by a skilled person, but there is no legal obligation to do either.

Beware Tree Preservation Orders (TPO) and Conservation Areas

The position is different if a Tree Preservation Order (TPO) is in place. Unless specific exemptions apply, it is a criminal offence to cut down, top, lop, uproot, wilfully damage or wilfully destroy such a tree, without first obtaining permission from the local planning authority. Permission of the council is also required if you live in a Conservation Area.

Who owns the cuttings?

After pruning, the cuttings still belong to the owner of the tree, and the neighbour should either return them or offer to do so before disposing of them.

Can I cross the boundary to undertake the work?

A neighbour must undertake the work from their side of the boundary unless the tree owner agrees, or there exists a legal right of access.