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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 71153
Experience:  Over 5 years in practice.
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Our boundary wall was damaged by a tree belonging to a neighbour.

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Our boundary wall was damaged by a tree belonging to a neighbour. We got quotes to rebuild the damaged section and he agreed to contribute towards the rebuild. I confirmed this in writing with him. We had the work carried out earlier this week, but the neighbour now states that we have damaged/destroyed some shrubs, bushes and plants which were on the land and is refusing to pay. I have photographic evidence to show that there were NO shrubs, bushes or plants on this land prior to the work being carried out. Would I have a case to take him to the small claims court?
Thank you for your question. My name is ***** ***** I will try to help with this.

Have you showed him the photographs?
Customer: replied 3 years ago.

Yes, but he says he took photographs himself (in March 2014) and he would have to look at those?

He could have removed the plants between then and now of course. Has he agreed to let you see his photographs?
Are you photos (good thinking taking them) taken just before the work stared?
Customer: replied 3 years ago.

I have some I took in August 2013 which shows there were no plants, and I also took some last Thursday showing no plants. His property is rented out and it was the tenants father who removed the plants. However, it would appear they are denying this, but I only have the landlords word for that.

Has he agreed to let you see his photographs?

When were the plants removed?

What is value of plants and what is cost of his half of wall?
Customer: replied 3 years ago.

We haven't spoken since he said he would look at his own photographs. The plants were removed prior to August 2013 and I don't believe they would have had much value. He was going to pay £600 towards the cost of rebuilding the section of the wall which was damaged by the tree. We had been quoted £1,200 for that section. We also got quotes to replace the whole wall as it had been up for a long time, but we simply couldn't afford it, so in the end we decided to have a fence erected. The cost of the whole fence was £3,500, but clearly we didn't expect him to pay for it all.

Even assuming that you had ripped the plants out, (and I accept that you did not) it is unlikely that the cost of the plants would be £600. You are entitled to see his photographs and therefore I would suggest that you told him that you categorically did not take these plants out and you have photographs to confirm that they were not in place when you started doing the wall.
He can allege that you took the plants out before doing the work but that is something that you would have to argue based upon your photographs.
If he does not have photographs or will not produce photographs it seems highly likely that he actually does not have photographs which support his version of events and if you ended up in court you could draw that to the attention of the judge.
I think probably the best way of dealing with this is to make sure that you put everything in writing and tell him that whilst you are adamant and have photographic proof that these plants were not there before the work commenced in order to settle the matter quickly if he comes up with the photographs that he has showing that there were plants there you can only assume that they were removed by the neighbour between the date of his photographs and the date of your photographs. That whilst you have you think an extremely good argument, you want the whole matter settled and therefore you are prepared to reduce the amount due in respect of the wall by £50 provided he pays you within the next 7 days. I think that is overly generous and that if you went to court based upon your photograph and his lack of photographs a small claim court for the whole amount would win. However, it could easily be 6 or 12 months before it gets to court.
What he cannot do is defend a £600 claim because a few plants costing probably £10, £15 or £20 may have got damaged.
If he will not see sense and pay you, issue Small Claims Court proceedings for the full amount which he will have to defend in whole or part. You have proof that he agreed to pay for the wall so the only argument is whether he has a defence for part of it in respect of the plants.
Can I clarify anything for you?
Customer: replied 3 years ago.

Thank you for your advice. Just to clarify though, when I wrote to him confirming his agreement to pay a contribution, we had not agreed an actual amount. My letter to him, dated the 3rd May 2013, said "you have offered financial assistance with the rebuilding of the wall, to be agreed by both parties". Would that be sufficient proof of his intention to pay?

I think a contribution of 50% is absolutely fair and to be honest, I think it's more than fair. If this tree is his and the tree damaged the wall through him failing to maintain the tree, then unless there is more to this, he is actually responsible for the full cost.
You might want to tell him that if you do issue proceedings, as it is history that damaged the wall, you would be seeking the full cost of reinstatement from him.
The only time he would not be responsible for the damage is if the tree falling over was not reasonably foreseeable which would happen in cases where it wasn't damaged and it wasn't rotten and the wind was of such magnitude that it would have uprooted even healthy trees.
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