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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10395
Experience:  I have been practising for 30 years.
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Storm Barney blew over a very large, tall tree in my garden,

Customer Question

Storm Barney blew over a very large, tall tree in my garden, most of it going into my neighbours garden across their wire netting boundary. My household insurance didn't cover me or my neighbour for its removal. They also told me I was not responsible for the removal of the tree from the neighbours garden unless I'd been negligent. (I'd had tree surgeons inspect all the trees in my garden a couple of weeks before the tree blew down). Also I didn't have to take the tree back into my garden if it was offered to me which it was & I declined. I offered to contribute to their costs by paying for its removal once the neighbour had cut it up but this was refused. I put my offer in writing.
They have since come into my garden & dragged all of the cut up tree from their garden in to mine. There's a huge amount of it. It was done on a day I was away from the property.
My questions are: Can I pursue a claim of trespass & fly tipping against my neighbour?
Thank you
Submitted: 2 years ago.
Category: Law
Expert:  F E Smith replied 2 years ago.
What you have been told is correct. You are not responsible for removing the tree unless you have been negligent. If you had the tree inspected a few weeks before, it is unlikely that you could be prove to be negligent. It is possible that the tree surgeons were negligent but that is a different issue.I take it that the insurance company have not wriggled out of paying and that it is clear from the policy that this is not covered. That’s not the case, you might want to consider making a complaint to the Financial Ombudsman Service.For there to be a negligence claim, the damage has to be reasonably foreseeable. If the tree came down as a result of wind that was so high that it could not possibly have been foreseen there is no negligence claim.However, the tree belongs to you. If the neighbour cut it up and took it away, that is potentially theft. It wouldn’t be prosecuted as theft because you had said that you didn’t want it.However you cannot simply put something in your neighbours garden (the tree) and then say you don’t want it and expect them to then deal with it. The tree belongs to you.You may not be responsible for its removal and cutting it up from the garden but the pieces belong to you.There is nothing to stop you bringing a claim against the neighbour for trespass and fly tipping the quantum of which would be the cost of removing the debris. You potentially face the neighbour counter claiming from you in exactly the same way and also private nuisance. That could include the cost of removal of the tree. He may also want to pursue a negligence claim against you which is going to involve you probably with more expert tree surgeon evidence than you have already.Yes you can pursue a claim for trespass and fly tipping against the neighbour but I think it would be ill-advised for the reasons I have stated.Can I clarify anything for you?Best wishesFES
Customer: replied 2 years ago.
Thank you for your advice which I will give a lot of thought.