16/09/13

Beware Tree Root Damage

Allowing trees to encroach onto a neighbouring owner’s land constitutes a nuisance.

Tree roots can cause considerable damage to a property. The damage is often caused by the roots taking water from the surrounding ground, particularly where the roots extend below any foundations.

Tree owners need to remain alive to the risk of a claim being brought against them for nuisance and ultimately the damage caused by tree roots.

To be able to claim for damages, one has to prove that the damage was caused by the encroachment of tree roots and that the owner of the tree breached the duty of care owed to owners of any neighbouring land.

It is well established in case law that an owner or an occupier of land “continues” a nuisance if with knowledge or presumed knowledge of say the existence of tree roots, an owner or occupier then fails to take reasonable steps to bring the nuisance to an end, having had reasonable time to do so (Sedleigh-Denfield –v- O’Callaghan [1940] AC880).

If you are concerned about a tree on any neighbouring land which is causing damage to property or may well cause damage to property in the future, then you first need to establish who is responsible for the tree and any maintenance.  Regular checks should also be undertaken to ascertain whether all or any damage is being caused or may be caused by the tree. If damage is being  caused or is likely for damage to be caused in the future, then the owner of the tree should be notified immediately to put the owner on notice of the nuisance or that there is a real risk of foreseeable damage.

If you are the owner of trees, then you should regularly survey them to check whether they are causing damage or likely to cause damage to any neighbouring property. You should be prepared to manage any tree to make any possible damage less likely or to minimise any potential harm.

Tree owners cannot escape liability using a defence of no actual knowledge, as liability is not dependant on actual knowledge. A tree owner will be liable if the owner ought reasonably to have known of the damage caused by the tree.

For further information and advice please get in touch.

16/09/13

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Kitsons Solicitors - Christian Robertson

Christian RobertsonPartner

Christian is a Partner in our Commercial team

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