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Stuart J
Stuart J, Solicitor
Category: UK Property Law
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Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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I have a large tree on my boundary. I am taking the boundary

Resolved Question:

I have a large tree on my boundary. I am taking the boundary as being along the line of a fence put in place by my neighbours when they bought their property in 1971. According to the land registry plan the true boundary is some 3 feet further into their property than the line of the fence but I have assumed that as its been in place so long the fence is now the boundary.

I bought my property some 30 years ago.

When they put the fence up they stopped the fence on one side of the tree and started with a new panel on the other side of the tree. In fact the fence post was nailed to the side of the tree. This leaves about a third of the tree trunk at its base and at height of top of the fence on their side of the fence.

This tree has a trunk diameter of about 44 inches and I would venture is circa150 years old

A branch broke from the end of a long branch overhanging their property and landed in their garden. There was no damage done.

They have asked me to remove the fallen branch debris and maintain the tree on their side removing other overhanging branches.

I am trying to establish whether this is my responsibility given that the boundary per the 40 year established fence runs through the tree trunk and did so when they installed the fence.

I have seen an opinion on a local authority website that says a boundary through a tree creates a joint responsibility and have suggested in writing to my neighbour that they take responsibility for branches on their side of tree and I will take responsibility for my side.

I have subsequently seen an opinion that suggested that ownership of a boundary tree will be determined by reference to the centre of the tree when originally planted.

So my questions are:

1. is the fence now the boundary?

2. do I have a case to restore the land registry plan boundary?

3. Given the fence line runs through the tree trunk is responsibility for the tree shared between me and my neighbour?

4. Is establishing the original tree centre when planted the correct approach to establishing ownership and responsibility?

5. If the tree is in my ownership does my responsibility extend to clearing up branches that have fallen into their garden but caused no damage and fell from branches that overhung their property given that they have a legal right to prune overhanging branches.

6. Put another way, does their legal right to prune overhanging branches diminish my liability if they fail to do so and some damage is caused by a falling branch?
Submitted: 1 year ago.
Category: UK Property Law
Expert:  Fran-mod replied 1 year ago.
I'm Fran, and I’m a moderator for this topic.

We have been working with the professionals to try to help you with your question. Sometimes it may take a bit of time to find the right fit. I was checking to see if you had already found your answer or if you still needing assistance from one of the professionals.

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Customer: replied 1 year ago.

Hi Fran,


 


No I have not found the answer. in fact stopped looking elsewhere in anticipation of an answer from JustAnswer.

Expert:  Fran-mod replied 1 year ago.
Thanks for the reply. I will search for a UK legal professional for you.
Customer: replied 1 year ago.

Thanks.

Expert:  Fran-mod replied 1 year ago.
You're very welcome!
Expert:  Stuart J replied 1 year ago.




I have been asked
to look at this for you.

So originally, the
fence would have been completely on your side of the tree and the tree would
have been on their land?



Because the fence
has now moved over you have inherited a strip of land and also half a tree?



Have you spoken to
them about the boundary and the fence and its position?



Would you be happy
for the fence to be put back where it was?



Is there any more
background detail please?



Customer: replied 1 year ago.

Sorry,


 


I did not make that clear. The original boundary would be 3 ft further into my neighbours land so I would/should have a 3ft wider garden. On that basis the tree would be well within my property.


 


They put up the fence and in doing so encroached on my land (per Land Registry plan) but this was some ten years before I purchased the property.


 


I have not discussed the boundary with them. It was not really an issue for me and I thought that after 12 years the encroachment was "acquired" by them. Subsequently they planted a leylandii hedge in what was my land which is now 60ft tall and I have lost my view over countryside and evening sun and so my interest in restoring the boundary is to remove those Leylandii.


 


As to the boundary tree it seems to me that they chose a new boundary when they put the fence up and ran it through the tree and so not feeling too sympathetic to their demand that I remove the fallen branch.


 


I did go around with my chain saw and cut it up and suggested they put it on their bonfire site. (They have regular bonfires.) But they phoned to insist I remove it. I am being treated for an injury to my shoulder and advised not to lift or carry any thing. In fact using the chain saw was probably unwise but it is small. Its their insistence despite knowing of my injury that annoyed me and prompted me to find out what is my legal responsibility.


 


If the boundary was restored to its Land Registry position I would happily accept my responsibility for the tree.


 


The land originally formed part of a large estate (15 mile boundary) and this parcel on the edge was sold in the '30s and resold as five strips of land. It rather looks as though each buyer chose the width of strip they wanted as each is a different width. My strip is the middle strip and last to be sold so its boundaries were determined by the boundaries of its neighbours' properties. So my left and right boundaries are described by their distance from my left and right neighbours far boundary. (i.e. the width of their plot). So the boundary in question should be 89 feet from my neighbours far boundary but in fact is 92 feet.


 


 


 

Expert:  Stuart J replied 1 year ago.




So, are they saying
that this is your tree or their tree or jointly owned?

Please confirm that
this tree is completely different from the Leylandi.



Customer: replied 1 year ago.

They are saying this beech tree is my tree and my responsibility to maintain and to clear the fallen branch.


 


I have suggested in a letter to them last Friday that since fence runs through the tree that its a joint responsibility and suggested that they should clear the waste and maintain the tree on their side from here on. I have not had a reply but I think they have been away over weekend and perhaps still away.


 


I know that its a practical and good neighbourly solution but those reasons are not persuasive to my neighbours from past experience and so I want to know if the law would treat this as a boundary tree with shared responsibility.


 


The Leylandii start further along the fence than the beech tree and are planted on their side of the fence.


 


I was trying to anticipate how they might react to my very polite letter and I thought that perhaps they might adjust that short section of fence that runs into the beech so that it goes around the beech on their side and then argue that since tree now wholly on my side of the adjusted fence then its my responsibility to maintain the tree.


 


Hence my question, does the fence as it now stands form the boundary?

Expert:  Stuart J replied 1 year ago.




This is a very common question. A
person cannot make an adjoining property owner cut the trees per se but please
see my later comments about trespass and nuisance.

Consent is needed to trim
deciduous trees which are protected by a Tree Preservation Order and a licence
may be needed to fell trees which are not protected by a TPO.



Evergreens cannot usually have a
TPO.



Regarding evergreens, a complaint
can be made to the council and they will deal with them under the nuisance tree
legislation but only with regard to the height. They want £300 fee to start the process and if they
find that the trees are a nuisance, they can compel a tree owner to cut them
down to 2 m high.



With regard to branches and roots
growing boundary,(evergreen or deciduous) these are nuisance and trespass. The
overhanging pieces can be chopped off as can roots growing underground but they
do not belong to anyone other than the tree owner, so the pieces should be
given back although if they are unceremoniously dumped over their hedge without
warning, it is not good for already fraught neighbour relations.



The following are links will give
you some reading with regard to high hedges and nuisance trees. Don't worry
about where the sites are geographically because the rules apply nationwide.



 



http://www.richmond.gov.uk/home/environment/planning/high_hedges/high_hedges_frequently_asked_questions.htm



 



http://www.tameside.gov.uk/planning/highhedges



 



http://www.gardenlaw.co.uk/trees.html



 



With regard to the other tree, I think you
can use this to your advantage. Firstly, let me tell you that this is likely to
have a tree preservation order on it and if it does, you need a licence before
you do any trimming.



If it is your tree, then you are indeed
liable to maintain it but with regard to them asking you to come and to collect
branches, (I don't know how big they are) I don't think a judge would be best
pleased if they took you to court to get you to remove branches which they
could easily pick up a lob over your fence.



It would be different if these are huge
branches and in that case, there is a potential issue that if someone was hurt
by one of these falling branches, who would be liable. In that respect, I think
the old title deeds would put the blame at your door.



At this stage, I would say that this is a
joint tree and they would keep quiet about the deeds. If they say no, it is
your tree, you can then say that it used to be your tree when they moved the fence
so that the fence was on the boundary with the tree, (show them the deeds and
the dimensions) they inadvertently took part control of the tree.



So, they can move the boundary back and you
will take control of the tree (if that's what you want) or leave the boundary
where it is and they are responsible for anything which falls on their side. I
am of the opinion that they cannot have their cake and eat it.



The legal situation with the land is that
once they have occupied it without consent or objection for 10 years for
registered land (12 years for unregistered land) they gain adverse possession
and can have the deeds amended to reflect the new boundary. So it really is a
case of do they want adverse possession of that land which includes the tree of
which they are complaining or not?



 



Does
that answer the question? Can I help further? Can I answer any specific points?



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Customer: replied 1 year ago.

Re the evergreens, I went down the ASBO route with my local council 2 years ago. They imposed a restriction on the height of the evergreens where they went past my house because it was easy for them to calculate the loss of light using the government's formula. But they failed to rule in my favour re the evergreens further along the boundary that have taken the view across the Chiltern Hills and now take the evening sun two hours earlier than before. It seemed clear that they simply do not have a mechanism for ruling on loss of view and enjoyment. Loss of light is easy as there is a mathematical formula. So although the introductory document from the Deputy Prime Minister refers to loss of view it seems councils unable to address it.


 


Interested to know if you aware of any ASBO rulings in favour of a lost view as distinct from loss of light.


 


re the Beech Tree I know there is no TPO. I was building a garage last year and had a lot of issues with the tree preservation officer on the council. I expected them to put TPOs on the trees I wanted to remove but they did not. I researched and discovered that TPOs can only be put on trees to which the public have visibility access. This beech tree on the boundary and the trees that stood where my garage now stands can not be seen from the road. I felled the trees to build the garage and the council just shrugged their shoulders and gave me planning permission..


 


Re the neighbour pruning overhanging branches. I note that if they prune they are obliged to offer me the prunings but if I decline to take the prunings are the legally permitted to dump the prunings over the fence?


 


Re the branch in question that fell on to their lawn. As a whole it was too big to pick up. The main branch was 5" diameter at its thickest and I cut that main branch into 8" sections so now can be easily handled. They have a ride on mower and trailer and so absolutely easy for them to take the waste to their bonfire site for their weekly bonfire.


 


Your comments re adverse possession of the boundary strip concur with what I believed to be the position but useful to have your confirmation. They have not sought to amend Land registry records to my knowledge and I guess Land Registry would have to inform me as it affects my title deeds.


 


As to joint ownership of a boundary tree it was this website www.lewes.gov.uk › Planning & Building ControlTrees & Landscapes


 


that pointed me to this solution. "If on the other hand, the tree or hedge is exactly on the boundary then it will normally be considered the joint responsibility of both neighbours concerned - unless the deeds indicate that one party is responsible for its management."


 


Are you aware of any case law re the determination of a boundary tree?


 


I agree with you that the first step is to take the position that it is a boundary tree with joint responsibility and that is what I have done but I am interested to know if there is case law to support that position. I like to argue from a position of strength founded on supporting case law.


 


Thanks so far.. Its been helpful.

Expert:  Stuart J replied 1 year ago.




Notwithstanding
what the Deputy Prime Minister may or may not have said, as I said earlier,
there is no right to review. The courts have already made comment (obiter as
far as I am aware) on this.

Yes,
the prunings belong to you and they are indeed entitled to dump them over the
fence. They do not have to take your rubbish. They belong to you and they do
not have to take them either. Remember that this only applies if this is your
tree. It is your tree, then the tree trespasses into their land and air space
and they are entitled to a remedy prevent the trespass.



I
accept it is easy for them to move the tree bits but, if the tree is your tree,
then it is your responsibility.



It
really comes down to whether the tree is yours or joint. On these facts, I
think it is joint or, because they moved the fence, they have inadvertently
made it joint. In which case, all the bits which land on their land are theirs.
However, as always, there is no black and white in law so please read the
following



Researching
extensive case law is beyond the scope of this site and a barrister will charge
£250 per hour. If you want an advice on this, expect to pay a barrister about
£600 plus VAT.



I can
quote you from my boundary dispute practitioners textbook:



"a
tree on the bounder will primer facing a belong to the person who planted it.
Masters V Pollie.



Acts
of pruning or lopping may provide evidence of ownership Davey v Harrow
Corporation



there
may be cases where the tree has been planted right up to the boundary and the
roots and branches may grow into the adjoining land and in that situation it is
possible that the tree will become jointly owned.Waterman v Soper



however,
it is much more likely that such a tree would be regarded as solely owned by
the owners of the land on whose land it was planted if that can be established
Elliott v LB Islington"



and it
goes on.



To
muddy the water even further, anything which is attached to the land becomes part
of the land so if they possess the land, they possess what is on it.



This
of course could all end up in a very long legal debate with the arguments for
and against and the only definitive way is to take the matter to court for a
determination for the court to rule who owns the tree. It is the moving of
the boundary which really really muddies the water.

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don't forget to positively rate my answer service even if it was not what you
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Thank you


Stuart J, Solicitor
Category: UK Property Law
Satisfied Customers: 19578
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
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