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Ash
Ash, Solicitor
Category: Property Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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I bought a new freehold property at the beginning of this year.

Resolved Question:

I bought a new freehold property at the beginning of this year. The contract I have with the builders/developers states that I may not cut down any tree on the property without their permission. There is a very large Pine tree about 12 feet from the house that looks unstable in windy conditions. I have made the developers aware of my concerns that the tree might fall down (as indeed another pine tree in the garden did over the Christmas period). The developers did not respond to my repeated concern and a request for sight of their arboricultural survey. I consulted a tree surgeon who came to look at the tree and he said he thought the tree was diseased and also pointed out that one of its roots has been damaged, probably when the foundations for the house were laid. I now did some research with the local council to see if there was any protection order or other factors concerning the tree that I should know. I found out that at the planning permission stage, in October 2011, the developers did in fact have an arboricultural survey done, and the pine tree was identified at that stage as diseased. As I still at that point hadn't received a reply from the developers, I wrote a more strongly worded letter. They have now emailed me back saying that not only must I pay for a new survey to ascertain that the tree is diseased and, possibly, destabilised. They will then consider whether or not I may remove it. They would also expect to have a consultation with neighbours to see whether any of them object to its removal on aesthetic grounds.

As I have purchased the house freehold I have to wonder how enforceable such a term is in a contract? I am actually quite worried about the tree - it does wave around quite alarmingly and its disease means it drops copious quantities of needles all over the garden, and causes the house's gutters to become blocked leading to overflows and water ingress in the house.

What could they do if I just removed the tree, do you think?
Submitted: 2 years ago.
Category: Property Law
Expert:  Ash replied 2 years ago.

Alex Watts : Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : Is it a restrictive covenant please?
Customer:

This is residential property and everything around is residential. The land can only be used for residential purposes. Does that answer the question?

Alex Watts : Yes. Why have they refused to accept the old report please?
Customer:

I don't know the answer to that. The old report states quite categorically that the tree is diseased. I think they may be playing for time as their emails to me have become rather rude. I think the fact that the tree has a severed root may be something to do with it. The root was severed some time ago as it's quite dried up but the builder may be trying to get some time between my taking over the property and any discussion of responsibility so that he can say perhaps that I did the severing.

Customer:

I am now going to talk to an arboriculturist to get another opinion. I will pass that along to the builder. If it can be demonstrated that the severing was done 18 months ago, plus or minus, then he was the one who did it. Would I be able to sue him for the costs of removing the tree, do you think?

Alex Watts : Can't you get the original report just to have an addendum rather than a new one?
Customer:

Yes - the original report is on the internet as part of the planning application process. It looks at the entire plot where my house and one other was built. All of the trees are identified and described. My pine tree is the only one in the entire plot that was identified as diseased. I would propose to only ask the arboriculturist to evaluate the pine tree.

Customer:

Also, btw, I don't get an email when you reply. I only found your first reply by accident ...

Alex Watts :

Email - I will alter technical, I can only see the expert end which is the question.

Alex Watts :

You should be able to get just an addendum report, I dont see what you need another full report.

Alex Watts :

But if a second opinion confirms the case again they should accept this.

Alex Watts :

If you have purchased the freehold, only the owner of a covenant can enforce it, not a third party.

Alex Watts :

If the beneficiary of the covenant does not want to enforce it, sadly you can't make them.

Alex Watts :

Of course if you do cut it down, what can they do?

Alex Watts :

Sue you?

Alex Watts :

But what would they get?

Alex Watts :

What damage have they suffered? None

Alex Watts :

The tree was unwell and may have died anyway.

Alex Watts :

All the Court could order you to do is plant another one

Alex Watts :

So get a second opinion, make sure this is in writing and then cut it down

Alex Watts :

The building firm would have to issue proceedings against you

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

Thank you very much. That is very helpful. Sally

Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.


Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.


 


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Customer:

I would like to rate your reply but the website's not allowing it as it says you haven't finished answering ...

Customer:

One final question before we close it down. Can I sue them for leaving this diseased tree and forcing me to have it removed? As they knew in 2011 that it was diseased did they actually have any duty to remove a tree that they should have known would cause problems?

Ash, Solicitor
Category: Property Law
Satisfied Customers: 10915
Experience: Solicitor with 5+ years experience
Ash and other Property Law Specialists are ready to help you
Expert:  Ash replied 2 years ago.
Try now.

Thanks.

Alex

Expert:  Ash replied 2 years ago.
Does that help?

Alex

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