Where tree roots cause damage to a neighbouring property, the owner of the tree can be liable, under the law of nuisance, for such damage. Claims for damage resulting from tree roots are brought in nuisance rather than trespass, even though the tree roots will be encroaching on the neighbouring land.
Normally it will be necessary to obtain a report from an arborist confirming that the damage was caused by the roots of the tree in question to succeed in a claim.
It will also usually be necessary to obtain a report from a surveyor confirming the extent of the damage, the remedial work required, the likely cost of such remedial work and any depreciation in the value of the damaged property.
The owner of the land upon which the tree is situated is usually the one who is liable for damage caused by the roots of that tree. However, an occupier of land in question (for example, a tenant) may also be liable if they are in the position to take steps to ‘abate’ (bring to an end) the nuisance. A person who has a sufficient degree of control over the tree may also be liable, even if they do not own or occupy the land upon which it is situated.
The owner or occupier of property damaged by the roots of a tree can bring a claim in respect of such damage.
If the damage occurred before the owner of the property purchased it, they can potentially recover the cost of all of the remedial work required, on the basis that the nuisance was a continuing nuisance and there is no need for them to prove that further physical damage has occurred since they purchased the property.
Typically a claim relating to damage caused by tree roots will comprise of the following:
It will be for the claimant to show that any expenditure incurred by them was both reasonably incurred and reasonable in terms of the amount.
The claimant may also seek an injunction restraining the owner of the tree or person who has control of it from allowing any further damage to be caused.
However, the owner or person who has control of the tree will only be liable for the cost of any remedial works that were ‘reasonably foreseeable’ and the claimant will normally be expected to give them the opportunity to abate the nuisance before incurring such costs.
For damage to be ‘reasonably foreseeable’ it will be necessary to show that the defendant knew, or ought to have known, that such damage would arise.
If there is only a vague possibility that a tree may cause damage, the defendant will not be liable for any such damage. The fact that a tree may be mature or very high or situated on clay is unlikely to be sufficient in showing that any damage caused by it was reasonably foreseeable.
Normally a defendant will only be liable for the cost of any remedial works once they have been notified by the claimant of such damage and fails to take reasonable steps to bring the nuisance to an end within a reasonable period of time. However, that will not always be the case.
If the tree is very close to a property, the real risk of damage to the land will normally be foreseeable as the defendant must in such circumstances have known, or ought reasonably to have known, that remedial expenditure may be recovered by the owner or occupier of the property in question.
Where owners of neighbouring properties have notified the owner or person who has control of the tree of damage sustained to their properties they may also ought to have known that there was a real risk of damage to other properties in the vicinity, even if the owners of such properties have not notified them of such damage.
It makes no difference whether a tree was planted by a person or by a person from whom they purchased the property or if the tree was self-sown as a nuisance arises when a person allows the tree to encroach from their land into that of their neighbour.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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