‘It will be obvious that the question of who owns trees on or near a boundary will often be of great importance to the owners of the land on either side – if only so as to determine the question of who has the duty to maintain them, or the right to fell them.’ Mynors 2002
In most cases, a tree in its entirety (trunk, branches and roots) is owned by the person who controls the land on which the tree was originally planted, usually the landowner. Whether the tree was deliberately planted or whether it was self seeded, the tree belongs to the owner of the soil that surrounds the base of its stem.
The question of ownership may be unclear if the tree is growing on or near a boundary, especially if the exact location of the boundary is unknown. When ownership is in doubt it is necessary to establish the location of the boundary.
Establishing ownership may be important for a number of reasons, not least because the owner of the tree has a responsibility, known in law as ‘the duty of care’, to take reasonable care to avoid acts or omissions which he or she could reasonably foresee may result in harm or injury.
A tree belongs to and is the responsibility of ‘the person’ on whose land it is growing. Ownership may be established by reference to property deeds or by following traditional conveyancing rules.
When a property is rented or leased, the responsibility for the trees may lie with the owner, agent or tenant depending on the written tenancy agreement.
Trees on a boundary
When a tree grows exactly on the boundary, so that the base of its stem is actually intersected by the line between two properties, the tree will normally be considered to be jointly owned by both neighbours – who are, at least in theory, tenants in common of the tree under a trust of land (since 1997), unless the property deeds or another agreement indicate otherwise.
Generally, with land held under a tenancy in common, both tenants have full use of the whole of the shared property, and neither can, for instance, sue the other in trespass. This applies where a tree is a genuine ’boundary tree’; the owners of both properties have equal rights to carry out works to it. However, if the tree is on the boundary line and undoubtedly common property, the tree cannot be removed without the consent of both parties.
When the position of the boundary cannot be established and the ownership of ‘the tree’ is still in doubt, it may be appropriate for the concerned parties to come to a voluntary agreement between themselves or allow the courts to rule on the position of the boundary.
Trees close to a boundary
Where a tree is located close to a property boundary, but not actually on it, some of its roots may extend into the soil of the neighbouring property, and its branches into the air over that soil. In such a case, the ownership of the whole of the tree, including those encroaching roots and branches, will remain unchanged, that is, the tree will still be owned by the owner of the land on which it was originally planted.
For specific advice, with respect to the law, please seek qualified legal opinion.
The above is based on: APN 11 Trees and Hedge in Dispute; Mynors C., 2002. The Law of Trees, Forests and Hedgerows.