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Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
from what you say, do I understand correctly that the roots are affecting the building as well as the garden please?
In terms of the garden, is this demised to a particular flat under the terms of the lease or is the garden communal for all the leaseholders enjoyment?
they have encroached on the drains and look as though they are going under the footings.
The garden is demised to a particular flat
The flats are 4 maisonettes in one block and each has its own garden
thank you. If the garden is demised to one particular flat, then the lease holder of that flat would be legally entitled to take action in respect of the routes that are encroaching onto their garden. they can do so by initially serving notice on the owner of the land on which the trees in question are growing notifying them of the trespass and requiring them to remedy the matter and preserving their position with regards XXXXX XXXXX potential damages.
the position with regards XXXXX XXXXX potentially to the building itself depends upon the terms of the lease. Most leases provide that the landlord is responsible for the structure of the building and the landlord will pass on the cost of maintenance to the leaseholders proportionately. However, some maisonette leases provide that the top floor leaseholder is responsible for the roof and structure of the first floor whilst the bottom floor is responsible for the foundations and ground floor structure. this is that provide for responsibility other than to the landlord are relatively unusual but it is important to check the lease to confirm the position to be sure
if the lease provides that the landlord is responsible for maintenance of the building which is the usual position, then with regards XXXXX XXXXX trees encroaching onto the foundations, this would be for the landlord to take action against. If the landlord is not fulfilling its maintenance obligations in this respect, an application can be made to the leasehold tribunal for an order that they do so
is there anything above I can clarify for you any further?
Thank you, XXXXX XXXXX what you have said but would like to clarify the following:
Should the insurance that we pay to the freeholder cover us for damage being caused by a third party and therefore the freeholders responsibility to remedy this situation through their insurers?
your buildings insurance policy provided by the freeholder may have legal cover associated with it and if so, this would divide cover for any legal action you chose to bring against the owner of the land with the trees. however, not all insurance policies include legal cover. The insurance policy should however in any event provide coverage for damage caused by roots and accordingly, a request to the freeholder to make a claim against the insurance policy can be requested
The council have already removed root intrusion to the drains which are approx. 1 metre from the footings, this root being 100 mm in diameter and is exposed though the patio, so we feel that this in itself proves that the integrity of the building is in threat and should be dealt with by the freeholder. The freeholder has written to us and said that the roots are our responsibility and that we should deal with the PTO and apply for us to remove the roots even though the integrity of the building is being threatened as the only place the roots can go in along or under the footings.
As above the place to start is your lease to ascertain responisbility for the building. It will clearly be defined in your lease. If the lease provides that the landlord is responsible for the building which would be normal then you can require the landlord to observe its maintenance obligations. If necesary you can force the landlord to by making an application to a property tribunal
Many thanks for you help
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