Rooting for trouble

In the article"Branching Out: dealing with encroaching tree branches"(August 2012) I discussed the issue of tree branches that encroach onto a neighbour's land. In this article, I will focus on the (almost) invisible but potentially more serious problem of encroaching tree roots.

Tree roots have long been known to be a cause of subsidence. Roots can also work their way into underground pipes, foundations and brickwork and the remedial work required to put right the damage caused can be extremely expensive. A property owner may find that their buildings insurance policy may cover the damage caused but the excess to be paid in such circumstances can exceed £1,000. Other, less fortunate property owners may find themselves having to meet the cost of repairing the damage caused by encroaching tree roots themselves.

Trees roots which are allowed to encroach beyond the boundary of the tree's owners land, like encroaching branches, constitute a nuisance. To be able to pursue a claim for damages for tree root damage, it is necessary to show that:-

• damage has occurred;
• the damage has been caused by tree roots, whether it be in part of full. If there are other contributing factors, the Court may decide the tree owner is only responsible for a proportion of the damage caused and thus only liable for that proportion of the damages claimed.
• the tree owner is aware, or should have been aware, that there was a real risk of damage being caused by his tree; and
• the owner of the tree failed to take reasonable steps to address the nuisance caused.

If an individual is concerned that the roots of a tree on neighbouring land could cause damage to their property, the first step is to notify the owner of the tree so that they can then have the opportunity to investigate the matter and, if appropriate, address the concern raised.

Unlike encroaching branches where the offending tree and the extent of the encroachment can be clearly identified, tree roots are, by and large, almost entirely beneath the surface. Where there is a gathering of trees in a small area, it may be very difficult to ascertain which trees pose a risk. It may, therefore, be necessary for investigatory work to be carried out both above and below ground before any decision can be reached as to whether any remedial work to the tree required and if so, the extent of that work. The tree owner must therefore be provided a reasonable period of time to carry out these investigations.

If a legitimate concern is raised but the tree owner, for whatever reason, does not take any remedial action, proceedings offer the only means of resolving the matter. In the case of tree branches, a party affected by branches encroaching onto their land can cut back the encroaching branches to the boundary line, provided that the work undertaken does not damage or kill the tree. However, cutting back tree roots will almost certainly cause significant damage or death to a tree. As a result, this 'self-help; remedy should not be adopted.

Neighbour disputes can become extremely costly. Adopting a common sense approach at the outset, even in the face of hostility from a neighbour, can help to avoid a protracted dispute and provide some protection against adverse costs orders if proceedings ultimately follow.

Rollits Property Dispute Resolution Group specialises in property based disputes, including boundary disputes, right of way disputes and trespass and nuisance claims involving private individuals, body corporates and government departments. If you have any queries arising from this article, contact Chris Drinkall directly on 01482 337367. Alternatively, if you have a property related grievance with a third party, contact Ralph Gilbert, Partner and Head of Rollits' Property Dispute Resolution Group on 01482 323239

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.