# Dangerous Tree but No One at Home



## TomTomOne (18 Aug 2009)

Hi there,

My mother is having a problem. A neighbour's overgrown tree is endangering her roof. But the next door neighbours are abroad permanently, are selling the house, are uncontactable and the estate agent acting on their behalf says they are not responding to his texts. I'm sure if he had a nice offer on their house for them then they would respond but that's by the by.

What I need to know is what can she do? Can she contact the county council and get them to do something? Is there anyone who can force the issue as the estate agent is being uncooperative.

It is reaching the stage where she is thinking of getting a tree surgeon in and paying for the branches to be removed. This is something she can't afford but she is getting scared about the potential damage.

Any suggestions gratefully received.


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## mathepac (18 Aug 2009)

Your mother is entitled to have any branches / foliage over-hanging her property removed / trimmed and she must return the off-cuts to the neighbour as they are their property.

As they are out of the country and the agent is acting on their behalf in regard to the property, I believe your mother can serve notice of her intentions on the agent. AFAIK, she needs no-one's permission for her actions.


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## Cat101 (18 Aug 2009)

Is the OP's mother responsible for the costs involved?


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## TomTomOne (18 Aug 2009)

Thanks for that Mathepac,

The problem is that it is a big job and it is going to cost. She needs to force the hand of the estate agent/owner in some way for THEM to pay for the work or get it done somehow.


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## Cat101 (18 Aug 2009)

I don't think the County Council will help unless your mum lives in a council house?
Or the tree is in danger of harming the public.
If it were my mother I would phone the EA with a very attractive offer on the house and see how long it takes the owner to respond. Then confront the EA face to face. Your mother shouldn't have to take responsibility for a tree on her neighbours property which is in danger of damaging her property.


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## TomTomOne (18 Aug 2009)

Thanks Cat101,

_Or the tree is in danger of harming the public

_Well she thinks it might harm her._..
_
About ringing the estate agent, that did cross our mind but she lives in a smallish town and is worried about doing something underhand to people she's been living with for years. She doesn't seem to realise they couldn't care less about her. That's why she wants to do it in an above board way.


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## mathepac (18 Aug 2009)

Tell your mother to contact a tree surgeon and pay him to remove the dangerous bits of the tree, or leave it and let the tree damage her roof (as she fears) and try claiming for the damage from her insurance. I believe those are her choices, subject to someone contradicting me.

Sorry I missed this bit - 





Cat101 said:


> ... I would phone the EA with a very attractive offer on the house and see how long it takes the owner to respond. Then confront the EA face to face...


This kind of nonsense is just that - nonsense. I believe in keeping things direct and simple.


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## Cat101 (18 Aug 2009)

I'm sorry Mathepac, I just don't see how it's the OP's mothers responsibility to incur the costs involved.

TomTomOne, My mother is like that too..she doesn't like a fuss made or have to put people out. If I were you I would contact the EA as above mentioned and 'Forget' to mention it to my mother untill it was sorted. Have you considered getting a quote from the tree surgeon and passing it on to the EA.. I would also ask him how many prospective buyers are interested in buying a house with a lawsuit attached to it these days? I wouldn't pull my punches untill it was sorted.


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## Cat101 (18 Aug 2009)

mathepac said:


> Sorry I missed this bit - This kind of nonsense is just that - nonsense. I believe in keeping things direct and simple.


 
Perhaps, but he is obviously dealing with a ridiculously unhelpfull EA.
If it got the deserved attention, I wouldn't have a problem with it.


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## mathepac (18 Aug 2009)

Cat101 said:


> I'm sorry Mathepac, I just don't see how it's the OP's mothers responsibility to incur the costs involved. ...


So who is responsible then; the nanny state, the disinterested absent homeowner, the EA, some insurance company or the usual favourite "I don't know but someone [else] must be"?

The lady has what sound like genuine concerns that her property may be damaged and in my view she needs to take reasonable and responsible measures to ensure this does not happen, otherwise she may be left with a bigger bill which no-one will pay.

With autumn here and winter staring us in the face the matter is fairly urgent IMHO.


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## Cat101 (18 Aug 2009)

mathepac said:


> So who is responsible.


 
_If you have freehold ownership of land upon which a tree grows you are responsible for it, unless you have leased the land to a third party who, through the terms of the lease, has accepted this responsibility.  The owner of a tree owes a duty of care to all third parties and is at all times liable for any nuisance or damage the tree causes.  Should the tree owner be aware of a defect in his/her tree and not address it, and damage subsequently results, he/she may be held liable for negligence._

Hope that answers your question


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## helllohello (18 Aug 2009)

could you ask the estate agent for contact details of the house owner and contact them directly yourself?
explain that it needs urgent attention and see how they respond.


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## mathepac (18 Aug 2009)

Cat101 said:


> _... _Hope that answers your question


No - that's a piece of UK (England and Wales specifically)  legislation you (or more likely a search engine) found on the internet which neither answers my question nor helps OP, IMHO.


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## Cat101 (18 Aug 2009)

Well it's IMHO Mathepac, that you seem more interested in having a dig at me and my posts that offering th OP any help or advice.


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## DavyJones (18 Aug 2009)

I certainly would not pay to have a neighbours tree removed. If it is a small place, you should have little trouble tracing owners. I would also apply more pressure on EA.


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## Cat101 (18 Aug 2009)

DavyJones said:


> I certainly would not pay to have a neighbours tree removed. If it is a small place, you should have little trouble tracing owners. I would also apply more pressure on EA.


I agree.


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## csirl (19 Aug 2009)

It's not really the EA's job to pass on messages to the owner from neighbours - they may do it as a favour, but not obliged to. I think you would be better asking the EA for the name of the owner's solicitor. EA should know this as the solicitor will also be involved in the house sale. Solicitor would be more willing to pass details to the owner, particularly if it is to avoid a future claim.


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## TomTomOne (23 Aug 2009)

Thanks csirl, I will investigate the solicitor.


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## dewdrop (24 Aug 2009)

While one can argue about various aspects bottom line is the fear that some night when you are in bed a heavy branch  or more will come crashing down. While i agree the legal route is best course one is faced with the possibility that nothing will  be done. My humble suggestion is for the lady to contact her own solicitor


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## Killter (24 Aug 2009)

I would always be careful about cutting trees that aren't yours-and yes even if they are encroaching on your property. I don't think you have the legal right to cut them....you could easily get stung. even though you tried to contact them through the EA is NO excuse. ive seen it happen.

If the tree damages your mothers house, the land owner (where the tree is growing) is responsible - this applies to injury to someone, cars, property etc.

if you do get an aborist to trim this tree, let him know that you dont have a solid wayleave.


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## mathepac (24 Aug 2009)

Killter said:


> ...  I don't think you have the legal right to cut them....you could easily get stung. ...


From a friend -  "The principles of law are, however, reasonably clear. Where the encroachment of tree roots [or branches] onto the property of a neighbour causes damage, this constitutes a nuisance, which entitles the injured party in an appropriate case to seek damages or an injunction or to abate (ie. reduce or remove) the nuisance himself or herself. *Moreover, he or she need not wait until damage is done: he may take protective action by cutting the roots as soon as they project into his property*...
Where a branch encroaches onto another's property and causes damage, the occupier of that property will have the same remedies as in the case of encroaching roots."

McMahon & Binchy Law of Torts   edition 3, pub. 2000, page 687:

If this citation is accurate, then OP's mother may pro-actively cut the projecting branches. The citation of course may well be one those interweb things that gathers gravitas as it rolls around; caveat lector and all that good stuff.


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## PMU (23 Oct 2017)

Cat101 said:


> _If you have freehold ownership of land upon which a tree grows you are responsible for it, unless you have leased the land to a third party who, through the terms of the lease, has accepted this responsibility.  The owner of a tree owes a duty of care to all third parties and is at all times liable for any nuisance or damage the tree causes.  Should the tree owner be aware of a defect in his/her tree and not address it, and damage subsequently results, he/she may be held liable for negligence._


Hi, am I right on this?  A neighbour's tree fell into my back garden last week after Storm Ophelia. They haven't made any attempt to recover it or contact me about it. I assume looking at these posts https://www.askaboutmoney.com/threads/neighbour-threw-pile-of-leaves-from-my-tree-into-my-garden-can-i-legally-return-them.177725/ and https://www.askaboutmoney.com/threads/dangerous-tree-but-no-one-at-home.120022/ that I can just chop the branches off the tree to make it moveable and then push it back over the wall, or do I have to talk to them about it (we don't actually talk to these people)?


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## MrEarl (23 Oct 2017)

Hello PMU,

I would contact them and tell them clearly that you expect them to remove it first.  It is their responsibility given it was their tree and I wouldn't be slow about telling them that.


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## noproblem (23 Oct 2017)

Yes, but they didn't knock it and they don't talk to the neighbours, so maybe they could make a see-saw of it and hope the next door tribe come out to play. No?

By the way, the other post was 8 years old and we were never told what happened. I wonder if the tree and the house owners have begun the process of creating vegetation for newer saplings?


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## Seagull (24 Oct 2017)

You can chop the branches, but you don't have the right to give them back all the pieces. You do have to ask them if they want all the pieces back.


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## DirectDevil (25 Oct 2017)

Try telling the selling agents that if there is no remedial action taken immediately to abate this dangerous trespass and or nuisance that your mother will instruct a solicitor to issue the legal proceedings.

Here is the kicker - tell them that you are also considering instructing your solicitor to place a notice of *lis pendens* ("pending lawsuit.") against the title of the neighbouring property. The essential argument here is that you intend to register such a notice pending resolution of the present issue. It might not stop the sale and purchase but it would certainly put some prospective purchasers right off and the estate agent will not get their fees anytime soon either.

To a degree, this threat contains an element of unashamed bluff . However, it would be justified as I perceive that you mother is being deliberately and unreasonably ignored - a very modern standard of behaviour I am afraid - and the other side need manners put on them.

Your mother does have a responsibility as well as a right to protect her property and may have to engage a tree surgeon to abate the danger. Be sure that there is adequate photographic evidence of the situation.

There is a potential waffle reply that might come from the neighbours / estate agent. If this tree is now dangerous because it has been moved by a storm in to it's present precarious position they may say that they are not liable because there is no defect in the tree. That is a fair argument. However, the present position must be *distinguished* in that there is *now* a new and different  hazard presented by the tree and that must be abated urgently by the owners.


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## PMU (25 Oct 2017)

DirectDevil said:


> However, the present position must be *distinguished* in that there is *now* a new and different  hazard presented by the tree and that must be abated urgently by the owners.


There appears to be some degree of confusion here. Rather than start a new thread over my tree problem (or rather the problem with the tree from the garden next door) I found the thread with situation that most closely corresponded, i.e. this thread, and updated it with a question concerning my tree. See post # 22 above. Otherwise it was likely some smart alex would just do a search, list all related threads and suggest I read them before opening a new thread, which, in any event I did.  But thanks for all the responses, which I have taken into account.


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