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cityguru
cityguru, Solicitor
Category: Property Law
Satisfied Customers: 13326
Experience:  solicitor
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Who is responsible for a tree falling over in a property with

Resolved Question:

Who is responsible for a tree falling over in a property with an easement, where the tree is within that easement? is it the landowner or the holder of the easement?
Submitted: 3 years ago.
Category: Property Law
Expert:  cityguru replied 3 years ago.
HI thanks for your question. The land owner is generally responsible. An easement is simply a right over the land, Of course if the easement holder caused the damage that might be different.
Customer: replied 3 years ago.

I was told the holder of the easement is responsible for maintenance of the property within the easement, so the holder is responsible, unless the land owner has been negligent. The tree fell in the storm, and we believe the holder of the easement is therefore responsible and should claim under their insurance. Please advise.

Expert:  cityguru replied 3 years ago.
What is the nature of the easement? Why is the holder of the easement responsible for maintenance? That sounds more like a lease or licence than an easement but of course it depends upon the terms of the grant.
Customer: replied 3 years ago.

It's vehicular access, entrance from the road - the entrance has a tree on each side and the property owner says they have a "right of way" through our property, the land is not theirs (which we are not aware of). One of the trees has fallen and the property owner states they want us to pay for the repairs

Customer: replied 3 years ago.
Relist: Incomplete answer.
Expert:  cityguru replied 3 years ago.
So to clarify, the easement is a right of vehicular access over the land? the existence of a right of way over land does not oblige the beneficiary to take responsibility for maintenance unless there is sue express covenant to do so in the deed of grant. Responsibility for the trees normally rests with the owner of the land or possibly the occupier but the holder of a an easement is neither.
Customer: replied 3 years ago.

Yes, it's vehicular access over the land. So, unless maintenance is specified, it's the land owner's responsibility?

Expert:  cityguru replied 3 years ago.
Yes that is correct. The only exception would be if someone else caused the damage but if it is due to weather it is for the landowner.
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