Avoiding hedge wars

When tree roots extend into your neighbour’s property they can cause damage, especially if they are close to foundations of a building.  Helen Porter, Partner in our Litigation and Dispute Resolution team, explains here the rights you have regarding tree roots and steps to take before legal action. 

When tree roots extend into your neighbour’s property they can cause damage, especially if they are close to foundations of a building.  During hot dry summers, water is taken up through the thirsty tree roots from the surrounding soil.  Particularly in areas of clay soil, the result is that the ground becomes dry and shrinks.  In winter months of heavy rainfall, the soil rehydrates and swells.  That alternate swelling and shrinking can cause movement in structures, leading to subsidence and damage.

Allowing tree roots to encroach on your neighbour’s land constitutes common law private nuisance.  It can also cause damage where concrete paths and boundary fences are lifted.

Overhanging trees

Two such cases made their way to the Court of Appeal in 2013 where it was found that the owner of the trees had a duty to take appropriate action where the damage was reasonably foreseeable to the neighbouring property.

In certain cases, and once the problems have been drawn to the attention of the owner of the tree, if they fail to do anything about the nuisance, it may be possible to instruct a tree surgeon and cut the offending branches or tree roots back to the boundary line.  Care, however, must be taken not to damage or kill the tree or to trespass into the tree owner’s boundary.

Where the neighbour’s trees are overhanging, there is a general right to trim hedges and lop the branches of trees back to the boundary line.  However, as the clippings, lopped branches and any fruit of the tree remain the property of the owner of the tree, they must be offered back.  It is also important to first ensure that the tree is not protected by a Tree Preservation Order.

Boundaries and access

The Theft Act 1968 makes it a criminal offence to take wild flowers, fruit and foliage from any plant if it is sold for commercial gain.  Similarly, you cannot go onto your neighbour’s land, or lean over the boundary fence, without permission.  Although you do have a right to maintain your property, if access to the neighbouring land is denied, you can apply to the Court under the Access to Neighbouring Land Act 1992.

In some cases, the Anti Social Behaviour Act 2003 might assist.  Problem hedges (such as Leylandii and Lawson Cypress) have been a high profile issue over recent years.  In extreme cases, violent disputes have escalated leading to murder and suicide.  The 2003 Act introduced new powers for local authorities to act in certain disputes which have often been exercised.  Where the height of a hedge is unreasonable, the local authority will serve a notice requiring the hedge to be cut down.  If the works are not carried out, the owner may be liable to a fine of up to £1,000.

Not all hedges are caught under the 2003 Act.  As a general rule, trees cannot legally interfere with a right of light over, or access to, a neighbour’s garden.  The 2003 Act covers evergreen or semi-evergreen hedges or shrubs over two metres high which must be a continuous hedge made up of a line of at least two or more trees or shrubs.  The Act does not apply to farmland.

An owner of deciduous trees which sheds its leaves in autumn, should also take care that the leaves do not block the neighbour’s guttering or drains to avoid a potential action in nuisance.

Taking legal action

Before taking any action, it is necessary to put the tree owner on notice of the problem and ask them to take appropriate action.  "We are able to assist with any such letter," explains Helen. "Care should also be taken that the legal boundary between properties is correctly identified.  If uncertain, and the deeds to the property do not assist, you may wish to consider drawing up a boundary agreement with your neighbour to avoid costly legal proceedings in the future.” 

For further advice on these issues, you can contact Helen on 023 8071 7487 or email helenporter@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.