Jane Rees, Associate at Berry Smith LLP, considers the steps that can be taken should parts of a tree encroach onto your property.
Whilst trees can add a great deal of beauty to our surroundings, problems can arise when they are not maintained properly. So, what can you do if the branches of a tree overhang your property or if the roots / trunk encroach onto your land?
Branches / Roots
Roots and branches of a neighbouring tree may amount to a nuisance if they (a) cause damage to buildings or vegetation on your land and / or (b) interfere unreasonably with your enjoyment of your land.
Overhanging branches and encroaching roots do not amount to a trespass per se. However, subject to some important provisos (as follows), you are entitled to lop any branches that overhang your property and cut back any roots that encroach over the legal boundary: -
- The branches / roots must not be cut back beyond the legal boundary (even as a precautionary measure, to stop them coming over in future).
- It is always a good idea to let your neighbour know that you are going to cut back the branches / roots before doing so.
- Any cut branches / roots must be offered back to your neighbour.
- You must not enter your neighbour’s land without permission as that would amount to a trespass. If your neighbour unreasonably refuses necessary access to their property, an access order can sometimes be obtained pursuant to the Access to Neighbouring Land Act 1992.
- If you instruct a contractor to cut back branches / roots, it is doubtful that your neighbour would be liable to reimburse the cost. This is because cutting back branches / roots abates the nuisance and, generally, damages can only be claimed if the nuisance has caused damage to your property.
- It is imperative that the removal of the branches / roots does not adversely affect the health and / or stability of the tree(s) in question. If such removal causes a tree to die or otherwise fail, your neighbour could potentially have a cause of action against you.
Whilst you would be entitled to cut the trunk back to the legal boundary, in reality this would be difficult because (a) the precise position of the legal boundary may not be clear, (b) cutting the trunk may render the remaining part of the tree unsafe and (c) the practical difficulties of cutting vertically may put off any tree surgeon and may well result in him / her unintentionally cutting too far.
Therefore, if you have expert evidence that the trunk has caused or is causing damage to your property, it may be preferable to bring court proceedings with a view to obtaining an order compelling your neighbour to remove the tree.
Complete Removal of the Tree
You will not be able to remove your neighbour’s tree without your neighbour’s permission or a court order. It is important to consider that you would not be able to insist that a tree is completely removed unless: -
- The tree is at risk of falling and causing damage and that can only be solved by having the tree completely removed. If either (a) the tree is not at risk of falling or (b) the risk of it doing so can be avoided by something less than the total removal of the tree (e.g. cutting back any dangerous parts) then you cannot insist on the tree’s complete removal. It is important to remember that such orders are at the discretion of the court.
- The trunk has expanded over the legal boundary and the encroaching portion of the trunk cannot be sensibly / safely removed without also removing the rest of the tree.
In deciding whether to order the complete removal of a tree, courts are likely to consider whether (a) damages are likely to be sufficient compensation for the continued imposition of the tree (such damages could be fairly modest), (b) the refusal of an injunction to remove the tree would effectively provide a licence to your neighbour to continue to encroach on your land and (c) whether the encroachment is only likely to increase over time.
If the encroachment is small (say a matter of a few inches) and the encroaching parts of a tree are not causing serious inconvenience (by way of actual physical damage or substantial inconvenience), then a court may well conclude that it is not appropriate at this stage to remove the tree.
If a tree (or parts of it) have interfered with your amenity and enjoyment of your property, it is possible to claim damages for the inconvenience and annoyance relating to the distress and inconvenience caused by the nuisance.
However, it is important to consider that it is a question of degree as to whether the interference with comfort and convenience is sufficiently serious to amount to a nuisance.
The natural functions to be expected of trees are not inherently a nuisance but can become so if they are excessive. We must all expect to have to put up with a certain amount of discomfort and annoyance caused by the legitimate activities of neighbours.
However, courts must strike a balance between the right of the potential defendant to use his / her property for his / her own lawful enjoyment and the right of the potential claimant to the undisturbed enjoyment of his / her property.
To succeed in a claim for damages for inconvenience, a real interference with comfort and / or convenience of living must be evidenced. This is measured by reference to how a reasonable person would react to the alleged nuisance, not someone of heightened sensitivities. Indeed, the discomfort suffered must be substantial to any person occupying the property and ought to be an inconvenience materially interfering with the ordinary physical comfort of human existence. This can sometimes be difficult to prove and, as such, damages for inconvenience and loss of amenity can be modest.
If you are concerned about your trees encroaching onto your neighbour’s land, it is important that you survey your trees on a regular basis to check whether they are (a) causing damage and / or (b) likely to cause damage to surrounding property. A tree owner who ought to have known of actual or potential damage to a neighbour’s property cannot escape liability for any damaged caused. Liability is not dependent on actual knowledge.
It is always advisable to obtain an opinion of an experienced arboriculturist before cutting back any part of a tree.
Jane Rees is an Associate Solicitor in the Dispute Resolution team at Berry Smith.
029 2034 5511