Boundary Encroachment by Trees


Published: 03-07-2018 | Updated: 06-09-2018

Article Summary

Trees planted close to property boundaries cause problems for neighbours as they grow larger, and it is often difficult for a neighbour to maintain a tree that he has planted once it reaches a certain height, and when he does not have access to your garden. This article discusses what a neighbour can do where neighbouring trees are encroaching and causing a nuisance.


Overhanging Tree Branches

The tree owner is the owner of the land upon which the tree is planted. A person planting trees will normally plant them around the sides of the garden, in order to retain the open space for his own enjoyment, even if the trees where never intended to be boundary trees. Tree branches that overhang a neighbour's garden are the most frequent cause of nuisance between neighbours. There is no legal right to kill or remove a neighbour's tree, but overhanging branches can be lopped but only back to the boundary line. It would be sensible for the owner of an offending tree to ask permission to enter the neighbour's garden from time to time to maintain any overhanging trees, and therefore avoid a nuisance from occurring.

In the leading case of Lemmon v Webb 1895 the principle of self-help by the offended neighbour was confirmed, allowing him to cut tree branches back to the boundary line. As the tree branches are the property of the neighbour they should be offered back to him (not thrown into his garden or the like!), and should not be disposed of until he has accepted or rejected them. This includes fruit and flowers cut from the tree.

It would be prudent to check with the local authority that there is no Tree Preservation Order and that the property is not in a Conservation Area, before proceeding, as permission will then be required from the relevant authority before lopping.


Tree Roots

The growth of tree roots may be the cause of latent damage to the adjoining property, e.g. by cracking and deforming paving, or by entering and growing along drain or soil pipes, causing a blockage. The law in such cases is similar to that for overhanging branches, i.e. the self-help remedy of cutting the protruding roots. The damage here is silent and pernicious and is often unknown until damage has occurred.

Tree Roots may also cause subsidence to the neighbour's house or land, especially where the ground is made up of clay. This may cause a moisture defect in the ground resulting in some foundation settlement, normally visible from diagonal cracks in the property brickwork between windows and doors.

Where extensive tree root removal is to be made it would be sensible to check with a tree surgeon that the tree will not become unstable as a result, otherwise damage may be caused to your own property or to that of your neighbour, should the tree fall.


Right of Light

Unless there is an easement for a right to light a neighbour is unable to claim damages for restriction of light due to the height or width of a tree, and although there are statutory rights guarding against excessively high hedges, there are none such for trees. If such an easement exists it will be shown in the Land Registry Title Register, and in even more detail by obtaining a copy of the Conveyancing Deed that created it.


Remedies

A neighbour who has sustained damage as a result of overhanging tree branches or encroaching tree roots may have the following rights:

1. Self-help - lopping and cutting back. If the tree is protected by a tree preservation order you will first need to obtain the council's consent.

2. Damages and an injunction. This would normally comprise a county court action for damages and an injunction to remove the nuisance. Any such damage would have to be more than the inconvenience of reduced light and overhanging branches. An action would normally be for damage caused by tree roots rather than overhanging branches.


Trees Planted as Boundary Trees

For information relating to trees planted as boundary trees please see our article - Trees on a Boundary.


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