large tree in neighbours garden

rossbeag

As I don't own the tree I have a tricky problem so hopefully someone who has similar experience can advise me how to handle this correctly legally. A very large tree (think its an oak) grows in the hedgerow which separates my neighbours house from the house behind them. Its towers over our house and the trunk is approx 15 foot from our boundary wall. Recently the neighbours who live behind my neighbour hacked the branches on their side only resulting in the tree becoming top heavy on our side. They had sought permission from the other neighbour on the grounds a tree surgeon had ruled the tree was diseased and a danger. I approached my neighbour next door and expressed my concerns that the tree was now more unbalanced and in a storm, very likely to fall on our house but he is not concerned. I know I can trim what overhangs but the trunks don't and they are huge. Do I have to wait for this tree to fall on my home before I can do anything? Any advise or similar experiences would be a great help thanks:)

johnnyskeleton

Can't give legal advice here - sorry.

This forum is only for discussing legal theory and hypothetical issues.

You should contact a solicitor, or your nearest FLAC for advice.

NUTLEY BOY

rossbeag this is NOT legal advice but rather a view on the theoretical / conceptual principles that strike me as relevant.

I am taking the history that you have presented as a theoretical scenario. This would would make the basis of a nice exam question or an essay by the way.

On the facts I agree with johnnyskeleton and think that you need legal advice from a practitioner.

Tree parts growing into neighbouring property could constitute constitute trespass and or nuisance.

You know that you can lop anything that comes over your boundary. I think that you are also entitled to repatriate the trespassing parts to their rightful owner. In legal terms this is known as shagging the branches back into your neighbour's garden..

Please remember that trees also have roots. Root patterns and sizes vary. If you are lopping off trespassing branches the roots are probably also under your feet in your garden. Incursion by tree roots also constitutes trespass in my view.

Trespassing tree roots can be a very serious problem for two reasons ;

(i) They can physically damage walls and undermine your house foundations if sufficiently close.

(ii) Tree roots extract moisture from the ground. If the roots are close to your foundations they might abstract sufficient ground water over time to weaken the ground support of your foundations and or induce subsidence.

Removal of ground support from neighbouring property might constitute an act of nuisance if the tree roots also undermine the neighbours soil and remove support, in turn, from your land. This is a bit of a complex point so I am just mentioning it in passing.

You don't say who obtained the tree surgeon's report. I infer that the hacking neighbours at the back did so. Get a copy of that report as it constitues important evidence IF the surgeon actually examined the tree properly as distinct from just looking at it from afar.

If your neighbour's tree is diseased and he takes no action about it that would appear to constitute negligence. Failure to inspect and maintain trees which then fall over due to being diseased is a classic basis for valid claims in negligence.

If the tree surgeon says that the tree is diseased and the owner has that knowledge but elects to do nothing that is probably negligence. This would be particularly so if the owner commissioned the tree surgeon to report to him and the surgeon recommended remedial action but the owner failed to act on it.

Sending a copy of the tree surgeon's report to the owner would fix him with knowledge of the danger. He might get his own report and say otherwise. In that case you would have a straight conflict of evidence and the next move would be to get your own tree surgeon to examine your neighbour's tree. That latter step would require the neighbours consent or possibly a court order if there is no consent forthcoming.

Your "hacking" neighbour at the back might be in a bit of bother too as their actions might be conceptually interpreted as negligence. Specifically, if they knew that the tree was diseased but then proceeded to cut it back leading to the present situation they might be accused of creating or worsening the present danger !

Negligence is about a number of issues one of which is reasonable forseeability. If the present hazard was a reasonably forseeable consequence of the "hacking" neighbour's actions they too might have some liability to you.

Interestingly, in negligence, if you do something which produces a result which was not reasonably forseeable but which was of a kind that was similar to what was forseeable, liability can attach [ (HUGHES -v- LORD ADVOCATE (1964) (Forseeability of fire versus explosion) ].

So, your "hacking " neighbours might have a problem. Ergo, don't do any hacking yourselves especially in view of the parlous state of the hazard.

There might be a claim grounded in nuisance on the basis of views expressed in McMahon & Binchy's Irish Law of Torts. They seem to take the view that trespassing roots are a nuisance akin to trespass. They also see the infliction of damage as entitling the victim to seek damages or an injunction or to take steps to abate the nuisance. Even more interestingly they say that the victim does not need to wait for damage to be done but can cut roots as soon as they invade or seek an injunction quia timet. Quia timet means "because he fears".

A quia timet injunction is grounded on the idea of preventing a threatened injury to property which could cause substantial or even irreparable damage if it occurred. However, McMahon & Binchy also caution that this remedy has "stringent requirements". I assume this refers to the quality of evidence required to obtain such a relief.

Nuisance is a bit of a loose concept to define. Two observations from O'Higgins C.J. in CONNOLLY -v- SOUTH OF IRELAND ASPHALT CO (1977) might make the concept clearer ;

"The term nuisance contemplates an act or omission which amounts to an unreasonable interference with or disturbance of or annoyance to another person in the exercise of his rights........"

"If these rights relate to the ownership or occupation of land ...........or other right enjoyed in connection with land then the acts or omissions amount to a private nuisance".

Great question for a theoretical argument. For real-world purposes a solicitor is required if the neighbour will not fix the problem by removing his tree.

On a practical level I hope that you get this resolved amicably as a legal dispute would probably be whole lot of trouble with an uncertain outcome. We had similar problems with neighbours who had piles of Leylandii (Sp ?) that were causing a lot of bother and it made relations very difficult as they were incredibly selfish, ignorant and unreasonable about their trees. Fortunately, other circumstances intervened and caused the problem to resolve itself . Neighbours in the UK have killed each other over similar problems with trees but that is not a preferred option............

seamus

Legal advice cannot be given out on this forum. Please consult the charter and stickies as regards what is and isn't allowed, and PM me if you have any questions.