How To Resolve A Neighbour Dispute Regarding Roots And Overhanging Trees

Dealing with troublesome neighbours can be challenging and we often advise on these types of disputes.

As an avid gardener, you’re not only tasked with the constant battle against intrusive weeds, but you might also have to contend with a less-than-considerate neighbour. They may neglect their gardening duties, particularly when it comes to attending to their apple tree. If they fail to properly maintain it, overgrown branches could encroach upon your property. This could potentially disrupt your enjoyment of your own garden and even cause damage. Now that Spring has arrived, trees are entering a phase of rapid growth, making this issue really relevant right now.

So, what do you do if you have a tree overhanging from your neighbour’s garden?

There can be a number of reasons why a tree growing on your neighbour’s property (or close to the boundary of your property) could be causing a nuisance to you. For example, the tree may have overhanging branches trespassing on your property, or it could even be blocking light from the windows preventing your enjoyment of the property. Very serious problems may also have been caused by the tree including a disturbance of the water content of the soil or even the presence of subsidence at the property caused by the tree’s roots.

Usually, the starting point when you notice these issues arising is to have a polite and respectful conversation with the neighbour to explain why you are unhappy. Reach agreement on what is to be done and by whom. The neighbour may agree to prune the branches of the tree back or even have the tree treated to minimise risks of damage.

Establishing ownership of trees

Establishing the ownership of trees is usually quite straightforward. A tree belongs to the owner of the land on which it is planted. If you are not the owner, you are not entitled to remove, prune or snip the tree as any action in this regard could result in a civil claim in trespass and/or private nuisance, as a neighbour cannot lawfully interfere with planting beyond the boundary. It could even amount to criminal damage.

If there is trespass or encroachment of the trees onto a neighbouring property and the roots cause damage, compensation can be claimed for it. But if branches extend over the boundary, you (i.e., the owner of the neighbouring property) are allowed to cut the overhanging parts so long as you do not go over the boundary line into the neighbour’s garden without permission. Once the branches are cut off, they should be offered back to the tree owner as technically these branches remain their property.

What are my options if there is a dispute?

You should start by finding out if the trees are protected by a Tree Preservation Order (TPO). A TPO is a legal order preventing the cutting down, uprooting, or damaging of certain trees without permission. If the trees are subject to a TPO, your neighbours will need consent (from the local council) to carry out any work. The district or borough council’s planning department or tree officer can check to see if a TPO is in place.

You can also check if there are any restrictions with the local council or planning authority. Is the property in the green belt or are there are any other local conservation area rules relating to trees? They can provide information about regulations and restrictions related to tree maintenance. If the trees are causing damage, the council may also be able to intervene directly.

If you have a mortgage on your property, your lender may wish to get involved in this matter as they will be interested in protecting their property which is at risk of damage. You should check any insurance policies you may have for the property which may include legal expense insurance coverage as this may assist with any claim you need to make and/or protect you from your neighbour’s poor behaviour.

Another option is to have the properties assessed by a surveyor to obtain estimates for repair and keep all receipts for any repairs as evidence. If there is disagreement you could even consider jointly instructing a surveyor with your neighbour.

Alternatively, if you choose to take matters into your own hands, you can lop the trees only to the extent of the overhanging branches trespassing on your land, but you should offer any prunings back to the neighbour as these remain their property. Before you do this, you should also warn your neighbour of the action you will be taking, in advance. You must not trespass onto the neighbour’s property at any time. You should also check for any TPO or other conservation restrictions before carrying out the work. You cannot cut back further than the relevant boundary, and you could be liable for any damage to your neighbour’s trees if, for example, the branch removals cause failure due to disease, a change in the balance of the trees, or different wind loading that causes the tree to blow over.

Therefore, it may be wise to employ a competent tree surgeon to ensure that any risk is minimised and they would take on liability for the work (check that they have suitable insurance before engaging their services (i.e., public liability insurance)). You must also ensure that the tree surgeon does not trespass on the neighbour’s land or get carried away with the pruning beyond the boundary line of your garden.

Potential remedies

There are a number of potential remedies for resolving this type of neighbour dispute.

Your neighbour owes you a duty of care – to ensure that their tree roots or branches do not cause issues (i.e., to do what is reasonable in all the circumstances to prevent or minimise the risk of interference with or damage to your property). If your neighbour does not do this, you may have a claim against your neighbour in negligence. To be successful in a claim for negligence against your neighbour you must demonstrate that: (1) your neighbour is aware that their tree roots or branches are encroaching (or ought to have known); and (2) there was a reasonably foreseeable risk of damage to your property, as a result of the encroachment.

The conditions may not be satisfied for a claim in negligence, although your neighbour may instead be liable to you in private nuisance (i.e., where the roots or branches have caused physical damage to your land, or if they have interfered with your enjoyment of the land). You could also have a claim in trespass to land, merely if any part of the tree is encroaching onto your land (i.e., the roots or branches).

Forms of alternative dispute resolution (ADR) such as mediation (where an independent third-party mediator guides the disputing parties to a workable outcome) can assist to resolve these types of disputes and we have suitable specialist fee earners in our office who can assist with ADR such as mediations – mediation is often very successful and helps to maintain a positive relationship between neighbours once the dispute has been resolved. It is also less expensive, time-consuming and emotionally draining than court action

Court action should be considered a last resort and it may be possible to obtain an injunction against your neighbour and also obtain damages to compensate any losses you have incurred (i.e., to put you back in the position you would have been in, had the offending tree not caused damage). The purpose of an injunction is to stop the nuisance by an appropriate method (i.e., the court may order that your neighbour lop the tree appropriately, or treat the tree and/or remove it entirely if such drastic action is required).

How we can help

If you have a dispute with your neighbour (whether it relates to a tree or for any other reason), we would be more than happy to assist you. You need to seek prompt and competent legal advice so that you can protect your position as much as possible. Please do get in touch with us so that we can discuss your matter and utilise our expertise to steer you to the most suitable outcome.

This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited.