Branches, Roots, Leaves, Fruit and Flowers that Cross Property Boundaries

Introduction

There is no requirement in law per se for a tree owner to prevent a tree or part of a tree crossing over a property boundary, however, conditional rights are given to neighbours to prevent or abate a nuisance or trespass.

Nuisance

When a tree growing on land owned by ‘A’ is indirectly interfering with the ‘use or enjoyment’ of land owned by ‘B’, this known in law as nuisance, for example, roots or branches encroaching under or over a boundary.

Trespass

When a tree growing on land owned by ‘A’ is directly interfering with the ‘use or enjoyment’ of land owned by ‘B’, this is known in law as trespass. It may be possible for the affected landowner to seek financial compensation from the tree owner and/or an injunction to have the trespassing roots or branches removed.

Branches

A branch of a tree which overhangs your land is an infringement of your rights and although it may not cause any actual harm, is considered in law to be a nuisance.

The tree owner is not obliged to cut back the overhanging branch but the person whose property is overhung has the right to cut the branch back to the boundary to remove the nuisance. This is known as abatement (NB Protected Trees). Although there is no obligation to ask the owners permission, or to give notice of your intention, it is courteous to do so.

If pruning is carried out without the owner’s permission it is important that neither you nor your equipment should trespass.

After removing a branch it remains the property of the tree owner and must be returned to them without causing damage to their property. You cannot put them to your own use without your neighbour’s permission. To do so would constitute an offence known as conversion, i.e. appropriation and use of your neighbour’s property.

If the owner notifies you, preferably in writing, that they do not want the removed material you are then at liberty to dispose of it as you see fit.

There is no precedent to recover any costs incurred in either removing or disposing of the removed material.

Roots

Roots that cross a boundary are considered to be a nuisance and may be cut back to the boundary in the same way as branches may be cut back to the boundary (NB Protected Trees).

Removing roots may adversely affect the health and/or stability of a tree. A tree owner may have a claim against his neighbour if the tree later dies or otherwise fails as a result of such an action.

Roots that cross a boundary and cause damage i.e. block a drain or contribute to subsidence may be regarded as trespassing. It may be possible for the affected landowner to seek financial compensation from the tree owner and/or gain an injunction to have the offending roots removed.

In considering liability, damages may only be awarded if it can be shown that the tree owner was negligent i.e. the damage was reasonably foreseeable and the tree owner should have taken preventative action.

Leaves, Fruit and Flowers

Fallen leaves, fruit and flowers do not constitute a nuisance in the legal sense.

The courts expect a reasonable person to accept the fall of leaves, fruit and flowers as a seasonal occurrence and a normal function of a healthy tree over which the owner has no control.

 

For specific advice, with respect to the law, please seek qualified legal opinion.

Reference: APN 11 Trees and Hedge in Dispute.