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Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We want to bring a claim against a neighbour

Resolved Question:

  • We want to bring a claim against a neighbour for Private Nuisance.

  • They have a 60ft high conifer tree in their back garden which is causing damage to our fence and garden path.

  • It's also seriously affecting the enjoyment of our property. For as long as the Tree is in situ, the nuisance will continue.

  • Our aim is that the Court will issue the Injunction remedy, to force him to fell the tree.

  • We are not particularly seeking financial recompense, we just want the tree gone.

  • We have had initially amicable communication with the person who we were told is the Landlord. We have a full email chain , however he is now ignoring our communications.

  • We have now checked the Land Registry and it seems likely that the property is owned by his parents and not him personally.

  • Our question, whose name can we put down as the Defendant on the N1 claim form? Is it the person we've been communicating with, or the names on the Land Register, whom we have not had any communication with?

Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

I am sorry to read of your circumstances. If you wish to seek an injunction on the above grounds you can consider doing so on the grounds of trespass and nuisance as you suggest.
If you wish to seek an injunction you should consider using form N16A rather than form N1.

The defendant will be the owner(s) of the property as set out on the land registry title entries. If you have not contacted them directly first you should consider doing so before you apply for an injunction unless you have written confirmation that te person you have been comunicating with is acting as their agent. If he has confirmed this you can proceed on the basis that everything you have told him, is known to the legal owners and equally everything he has said to you has come from the owners. If he has not or will not confirm he acts as their agent then you would need to first serve notice on the owners giving them at least 10 days to respond or warn of your intention to apply for an injunction and costs.

I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Expert:  Joshua replied 1 year ago.
I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful.
Customer: replied 1 year ago.

Thank you very much for the clear reply.

We did not want to jeopardise our claim and risk losing it on a technicality of not following proper notification to the right persons prior to making a claim.

This is what we sent to him in January 2015, in the initial stage, where he had asked us to outline our concerns in writing.

We would appreciate your advice as to whether, this would be comprehensive enough particulars for us to put on the N16A?

It was indeed good to talk earlier in the week. I am certain that we will be able to resolve this both amicably and swiftly and at the lowest cost.

By way of background ,from "our side of the fence" , so to speak.

  • My 83 yr. old Mother has owned and lived in our property since the early 1960's.

  • She therefore is the one person who knows the history of the tree, from the time when it wasn't there at all through to watching it grow over the years to its present size.

  • As I mentioned on the phone, she is registered disabled suffering from severe arthritis that seriously affects her mobility.

  • She greatly enjoys the garden and is keen to continue to tender it for as long as she possibly can.

  • The tree roots have raised the crazy paving path that runs parallel to the fence and this means it is now very unsafe for her to use the path.

  • The Tree Specialist we consulted, (see his quote attached) confirmed that the roots on these conifers are very shallow.

  • Hence for us to replace the path to make it safer for her can only be a temporary measure, as if the tree remains in situ and continues to grow, the new path would be similarly damaged.

  • The Specialist further advised that due to the shallow roots, in given severe weather conditions the tree is at risk of falling over.

  • He also strongly advised against pruning or lopping as this only encourages further growth.

  • My Mother had the whole length of the fence replaced in December 2010.

  • I'm sure that you will agree that the attached photos (see Word Doc attached) demonstrate that the tree has now caused damage to the fence since it was replaced.

  • The tree trunk is now firmly hard against the lower Arris rail and has caused the gravel board to be pushed out of alignment by approximately 50mm.

  • Bearing in mind that in 2010, when the fence was replaced, the girth of the trunk was approximately 2-3 inches clear of the bottom Arris rail. This then demonstrates the speed of growth of the tree and so we can anticipate that this section of our fence would be fully destroyed by the tree within the next 5 years if it remains in situ.

  • The base of the tree will then also clearly extend over our boundary property line which would mean that replacement fence would have to be built around the tree, thus impacting on the established boundary lines.

I'd very much like to confirm that you are very welcome to come round and take a look at the impact that the tree is having on , the path, the fence and how the overhang of the branches does affect enjoyment of the garden for my Mother , as during the nicer weather, it pretty much casts shadows across large areas of the garden at all times of the day.

  • Please see the Quotation we received from the Tree Specialist and his recommendations and assessment of the tree.

  • I note that you mentioned your concerns regarding privacy between the gardens for your tenants. We are happy to hear the details of the concern, however, I’d like to draw your attention to the fact that all lower branches have been removed from the tree by either the tenants or landlords of your property at some point in time, up to a height of 10ft.

  • Therefore, we’re not sure how the tree offers any privacy for either garden.

I hope the above and the attachments provide enough info at this stage for you to consider. It remains our view that the only solution is to have the tree felled and the remaining trunk killed off to prevent any re-growth.

Given that I will have to incur costs to have the fence repaired, and spend money on some solution for my Mother to be able to walk safely in the garden, both of which I am unable to do whilst the tree remains in situ, I am willing to contribute 20% of the cost to have the tree felled. Given of course, that the final costs don’t exceed the cost of the quotation we sought.

Once, again, I’d like to reassure you that we are keen to reach an amicable and mutually beneficial resolution and we welcomed your suggestion to have everything in writing.

Look forward to hearing from you when you’ve had time to look through all the above.

Kind regards

Expert:  Joshua replied 1 year ago.
I am glad the above was helpful. In relation to the above material, this generally looks fine. Obviously you would need to reword it to fit the purpose you intend - namely you need to frame it in terms of:
1) setting out succinctly the damage the tree is causing to the garden setting out each item of damage clearly and referring to the tree surgeons report where relevant;
2) setting out succinctly such further damage you consider likely again referring to the report where appropriate;
3) setting out the fact that the tree is overhaning the garden without a legal rightl
4) that the tree is causing a nuisance inloss of amenity ;
5) if applicable that it is blocking light through windows in the house
6) that the owners have failed to take any steps to halt or remedy the damage and nuisance being caused
7) finally clearly asking the court for injunctive relief in the exact terms you require - i.e. the exact steps or actions you wish the court to order.

Normally you would set out your above statement in succinct number paragraphs so the judge can clearly and quickly read through it.

But other than some reworking of the material to fit the above guide generally it does appear that you have all the relevant points in the above.

Can I help you with anything else or has the above answered your questions satisfactorily?
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other Law Specialists are ready to help you
Customer: replied 1 year ago.

Once again, thank you very much.

Surprisingly!, just now, today we have received a reply from him!!!, following our email to him on Friday, where we copied in the Land Registry Search, and asking him to confirm if he was the legal owner.

Expert:  Joshua replied 1 year ago.
A pleasure. I hope you are able to resolve the matter without recourse to the courts if possible.

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