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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10189
Experience:  Barrister 17 years experience
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We have a 200ft beech tree growing less than one metre from

Customer Question

We have a 200ft beech tree growing less than one metre from our House wall. The tree is owned by the neighbouring property and we have expressed our concern about it's potential for damage to our property over a 15 year period. In 2000 the owner said he was not prepared to pay to do any work to the tree or remove it as advised by a Tree Surgeon, and that any work must be paid for by ourselves. We undertook limited cutting back of the tree by specialists at that time ,and accordingly paid for it , they (Wessex Tree Surgeons) sent a strong letter to the owner urging the trees removal due to it's inappropriate location at that time (2000) Nothing was done , We now have clear root damage to our driveway and internal cracking to ceilings. We have once again approached the owner with an Arborculturist in attendance who reiterated the potential for future and ongoing damage to our property. He advised complete removal of the tree. The owner has once again responded that he will not pay for the removal of the tree but that we can do it at our own expense. We are aware the duty of care lies with him .....what course of action is open to us ?
Submitted: 3 years ago.
Category: Law
Expert:  Buachaill replied 3 years ago.

Buachaill :

1. There is nothing stopping you from removing the tree on the basis that the tree is causing a nuisance to you and then suing the owner of the land for the costs of removal. In law, the owner of property is responsible for all items growing on it, including trees. If the branches or roots of the tree cause damage to neighbouring property, then that property owner is liable. Here you should sue your neighbouring owner for the damage caused by the roots to your property and also remove the tree and sue the neighbouring owner for the costs associated with removal on the basis that the tree is causing an actionable nuisance to your property and is a danger to health & safety.

Buachaill :

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JACUSTOMER-aqikviyo- :

will it be possible to sue my neighbour in the small claims court rather than embarking on a lengthy and costly legal process . If I am able to do this is there any particular law I should be aware of that is supportive of this action. Is the key phrase actionable nuisance to property ?

Buachaill :

2. Yes, the key phrase is actionable nuisance to property. However, the other buzz word is damage to property caused by roots. all the law in this area is of ancient lineage. Secondly, I would not advise bringing a claim of this nature in the Small Claims court. You should really go to the County Court, or the Magistrate's court. The Small claims court is not really suited to claims of this nature, I regret to say.

Buachaill :

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JACUSTOMER-aqikviyo- :

How do I set about taking action in the County or Magistrate's Court? I have acted as a Mackenzie Friend in the past and am reasonably articulate. we will have the benefit of an Expert Report , and very clear photographic evidence , in addition to witness statements is there anything else I should be including? What is the cost of taking out an action of this type in the Court ?

JACUSTOMER-aqikviyo- :

Also could you advise honestly of the likelihood of success?

Buachaill :

3. I would recommend you speak with a solicitor concerning costs. There is a wide variation of fees as between solicitors, so you seek a quote from more than one solicitor. Costs will be about three times greater in the County Court as compared with the Magistrate's Court, so this may determine where you want to bring the action. HOwever, arguments are more legally based in the County Court than in a Magistrate's Court. I have no experience in acting as a lay litigant so you will have to ask a fresh question about this issue if you wish to act for yourself in either Court. Finally, litigation is hazardous. There are no racing certainties. Your chances are about 70% of success.

Buachaill :

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