No I have not found the answer. in fact stopped looking elsewhere in anticipation of an answer from JustAnswer.
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So originally, thefence would have been completely on your side of the tree and the tree wouldhave been on their land?
Because the fencehas now moved over you have inherited a strip of land and also half a tree?
Have you spoken tothem about the boundary and the fence and its position?
Would you be happyfor the fence to be put back where it was?
Is there any morebackground detail please?
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.
So, are they sayingthat this is your tree or their tree or jointly owned?
Please confirm thatthis tree is completely different from the Leylandi.
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?
This is a very common question. Aperson cannot make an adjoining property owner cut the trees per se but pleasesee my later comments about trespass and nuisance.
Consent is needed to trimdeciduous trees which are protected by a Tree Preservation Order and a licencemay be needed to fell trees which are not protected by a TPO.
Evergreens cannot usually have aTPO.
Regarding evergreens, a complaintcan be made to the council and they will deal with them under the nuisance treelegislation but only with regard to the height. They want £300 fee to start the process and if theyfind that the trees are a nuisance, they can compel a tree owner to cut themdown to 2 m high.
With regard to branches and rootsgrowing boundary,(evergreen or deciduous) these are nuisance and trespass. Theoverhanging pieces can be chopped off as can roots growing underground but theydo not belong to anyone other than the tree owner, so the pieces should begiven back although if they are unceremoniously dumped over their hedge withoutwarning, it is not good for already fraught neighbour relations.
The following are links will giveyou some reading with regard to high hedges and nuisance trees. Don't worryabout where the sites are geographically because the rules apply nationwide.
With regard to the other tree, I think youcan use this to your advantage. Firstly, let me tell you that this is likely tohave a tree preservation order on it and if it does, you need a licence beforeyou do any trimming.
If it is your tree, then you are indeedliable to maintain it but with regard to them asking you to come and to collectbranches, (I don't know how big they are) I don't think a judge would be bestpleased if they took you to court to get you to remove branches which theycould easily pick up a lob over your fence.
It would be different if these are hugebranches and in that case, there is a potential issue that if someone was hurtby one of these falling branches, who would be liable. In that respect, I thinkthe old title deeds would put the blame at your door.
At this stage, I would say that this is ajoint tree and they would keep quiet about the deeds. If they say no, it isyour tree, you can then say that it used to be your tree when they moved the fenceso that the fence was on the boundary with the tree, (show them the deeds andthe dimensions) they inadvertently took part control of the tree.
So, they can move the boundary back and youwill take control of the tree (if that's what you want) or leave the boundarywhere it is and they are responsible for anything which falls on their side. Iam of the opinion that they cannot have their cake and eat it.
The legal situation with the land is thatonce they have occupied it without consent or objection for 10 years forregistered land (12 years for unregistered land) they gain adverse possessionand can have the deeds amended to reflect the new boundary. So it really is acase of do they want adverse possession of that land which includes the tree ofwhich they are complaining or not?
Doesthat answer the question? Can I help further? Can I answer any specific points?
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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 Control › Trees & 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.
Notwithstandingwhat 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 asfar as I am aware) on this.
Yes,the prunings belong to you and they are indeed entitled to dump them over thefence. They do not have to take your rubbish. They belong to you and they donot have to take them either. Remember that this only applies if this is yourtree. It is your tree, then the tree trespasses into their land and air spaceand they are entitled to a remedy prevent the trespass.
Iaccept it is easy for them to move the tree bits but, if the tree is your tree,then it is your responsibility.
Itreally comes down to whether the tree is yours or joint. On these facts, Ithink it is joint or, because they moved the fence, they have inadvertentlymade 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 thefollowing
Researchingextensive 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 canquote you from my boundary dispute practitioners textbook:
"atree on the bounder will primer facing a belong to the person who planted it.Masters V Pollie.
Actsof pruning or lopping may provide evidence of ownership Davey v HarrowCorporation
theremay be cases where the tree has been planted right up to the boundary and theroots and branches may grow into the adjoining land and in that situation it ispossible 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 bythe owners of the land on whose land it was planted if that can be establishedElliott v LB Islington"
and itgoes on.
Tomuddy the water even further, anything which is attached to the land becomes partof the land so if they possess the land, they possess what is on it.
Thisof course could all end up in a very long legal debate with the arguments forand against and the only definitive way is to take the matter to court for adetermination for the court to rule who owns the tree. It is the moving ofthe boundary which really really muddies the water.
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