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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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Two questions: UK Property Law: first My daughter and

Resolved Question:

Two questions: UK Property Law: first
My daughter and son-in-law purchased an old detached property two years ago and proceeded with an extension and renovation which is now complete. On their boundary beyond their property line, is a 40 ft tall Eucaliptus tree which was identified by survey as within their neighbours boundary line. (The purchase would not have proceeded had that not been the case. Following return after a two week holiday their neighbour has replaced hedging with a fence and, in the process, kindly revised his boundary to exclude the tree and so include it in my daughter and son-in -law's property' What is the way forward - can they extend the new fence to place the tree from their boundary or must it become a legal dispute?
Second: Neighbours on both sides of their property advised that daughter and son in law were responsible for the upkeep and replacement of the boundaries between their properties. I understand that the law relating to such upkeep has been changed to a joint responsibility- is this correct - or are 'arrows on ground plan with deeds still the
the guide to whose responsible?
Submitted: 2 months ago.
Category: Law
Expert:  F E Smith replied 2 months ago.

So is it simply a legal dispute over who owns the tree because no one wants responsibility for it?

Is there any kind of protection order on it?

What is the problem with the tree?

Regarding the boundaries, are there any T marks on the land registry plan and is the neighbour saying the your daughter and son-in-law must maintain the fences?

Is the property freehold or leasehold?

Customer: replied 2 months ago.
No protection order on tree. Problem is it is a 'Australian Eucaliptus' already very substantial growth and branches.
Daughter paid for boundary and land survey to ensure tree was not in their boundary lines before purchasing property, Survey identified tree was in neighbours boundary line, as did 3ft metal posts and wire fencing prior to new fence being put up. I have taken photographs of metal fencing and stakes around the tree and how new fencing goes to back of tree to in effect 'gift' the tree to my daughter. The survey identifying tree re boundaries is with Land Registry and deed records.
Re T marks: Both neighbours say daughter must take responsibility for dividing fences possibly due to fact that daughters house and 'Eucaliptus neighbour are parallel( together) and other neighbour is at a sort of right angle to daughters house and so he is assuming daughter responsible for his LHS boundary.
Priority is tree question and how to proceed?
Expert:  F E Smith replied 2 months ago.

There is no legal doctrine where the property on one side belongs to one property and on the other side belongs to another property and even if there are T marks on the deeds which shows ownership of the boundary, that was only ownership at the time the deed was produced, it could have been changed later on with subsequent owners and it may come down to who ever erected the fence at a later date in time.

If there is no evidence of any of that, then the boundaries are jointly owned and are jointly responsible. Even if your daughter is responsible for the boundaries, she is under no duty to maintain them, she can let them fall down, provided they don’t cause damage or injury.

At the moment, there is a dispute over the boundary because unusually, no one wants to take responsibility for this piece of land which is perhaps understandable, because of the liability of the tree.

So you have a boundary dispute which is kind of in reverse.

If your daughter maintains that the tree is not hers and the neighbour maintains that the tree is not his, then the only way of resolving the issue would be to make an application to court to have the matter determined by a judge. The outcome of the court hearing would be dependent on what evidence each side puts forward as to where the boundary was meant to be.

If this went to a full blown land tribunal dispute, the loser could easily be facing legal costs up to £10,000 and potentially more.

For that reason, if the tree is to be removed, it might be an idea to come to an agreement to divide the costs equally between them because at least then, whatever the cost of removing the tree is, it is without risk. There is never a guaranteed outcome when something gets to court regardless of how favourable a report either party may have.

If the neighbour however simply refuses to budge and maintain that it is your daughter’s responsibility, she either has to bite the bullet and maintain it if she is concerned about it, ignore it and let the neighbour worry about it or take legal proceedings to determine ownership.

The neighbour of course is in exactly the same position. Sometimes, there is no definitive answer otherwise matters would never end up in court. They have to be decided by a judge.

Can I clarify anything for you?

Please rate the service positive. It doesn’t cost you anything but helps me greatly.

We can still exchange emails.

Best wishes.


F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience: I have been practising for 30 years.
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