Exceptions

The information below does not relate to trees covered by a Tree Preservation Order (TPO), or trees situated on a property boundary.

Works to a protected tree must be approved by the local authority well in advance; for more information, see ‘What is a Tree Preservation Order?’. Trees on a boundary are jointly owned by the two landowners, so responsibility is shared between these parties in this case.

Duty of Care and Negligence

A tree is owned by the landowner on whose land the trunk originally grew.

The central tenet of tree ownership is that owners should take ‘reasonable care’ to ensure their tree is not causing harm or injury to neighbours, or damaging their property. Failure to do means they have been negligent, and could be liable for any damage, injury or harm caused if it was ‘foreseeable’. For example, if a dead branch has been heard creaking in the breeze over a few months, and this branch falls through the roof of a neighbours shed, the tree owner is liable because the shed was damaged due to a breach of the tree owner’s duty of care to their neighbour. Similarly, if a tree owner was advised their tree was dangerous and did not take action to have it made safe, they are liable for injury or harm it causes.

The RHS advises property owners undertake tree inspections to keep an eye on the health of their tree(s), either themselves or through hiring an arboriculturist. Kew Gardens offers a guide to lay tree inspection. There are no set rules for the regularity of inspections or whether it is always necessary to employ a professional - this is down to the judgement of the tree owner. If in doubt, consult a professional.

The central tenet of dealing with trees that encroach on your property is that, whilst you have a right to cut back the parts of a neighbours’ tree to the property boundary, you must exercise ‘reasonable care’ when doing so and you are liable for any damage caused to the tree. It is well worth hiring an arboriculturist contractor if you are not confident in your use of the equipment or processes.

Roots

Although property owner can’t see tree roots, they are still the legal owners and are therefore responsible for any damage the roots cause to properties (their own or a neighbouring property). Roots suck moisture from the soil which changes the soil composition significantly; this can cause subsidence, foundation movement or blocking drains.

The legal owner of the tree is most likely liable for rectifying the problem and any damage caused under the Law of Private Nuisance, but it must be proven that the damage was ‘foreseeable’, and the cause and extent of damage has to be established. Understandably, this can be a lengthy process that will involve an arboriculturist consultant and surveyor at a minimum.

If you are concerned about damage your tree roots might be causing to your own property or neighbours’ properties, it is worth seeking professional advice from an arboriculturist as part of your ‘reasonable care’. 

If a neighbours’ tree roots are impacting your property, legally you are entitled to cut them back, but equally you are liable for any damage caused by doing so (for example, if cutting the roots weakens the tree and it falls or dies); as for property owners, it is worth seeking professional advice rather than taking matters into your own hands.

Branches

One of the most common issues with trees on private land is overhanging branches.

Neighbours do not need to seek permission from the tree owner to cut overhanging branches; they have a right to cut the branches back to the property boundary, so long as they do not have to trespass on their neighbours’ land to do so. Similarly, neighbours have a right to climb a tree they do not own to cut overhanging branches, so long as this does constitute trespassing.

Cut branches should be offered back to the tree owner; if they do not want them, it is up to the person who cut them to dispose of them. Where good neighbourly relations exist, a tree owner will often tell their neighbour to ‘throw the branches back over’ for them to dispose of as a responsible tree owner, but it is unwise to do this unless you have been specifically asked to.

As mentioned above, the neighbour is liable for any damage caused by cutting overhanging branches. The most common issues that can arise are: disease; altering the balance of the tree and causing it to become unstable; changing the wind loading of the tree which causes it to fall.

If a tree is blocking light from coming into a window on a neighbouring property, it is unlikely that the Rights of Light Act (1959) can be used to apply for it to be lopped or pruned. The length of time taken for a tree to grow makes it very difficult to accurately determine when light was lost, and the property needs to have received light for a minimum of 20 years for the Act to apply.

If the offending tree is in a line of trees forming a hedge, it is more likely that the High Hedges Act (2003) will come into play. The tree must be: part of a hedge formed of two or more evergreen or semi-evergreen trees; at least 2m tall; blocking light or access and negatively affecting enjoyment of your property. 

The government encourages property owners to try and resolve disputes between themselves without intervention from the Local Authority in the first instance, and has produced a guide to that effect. If no agreement can be reached, it might be necessary to take action through the local council.  

Fruit

If overhanging branches are fruit-bearing, it is worth bearing in mind that the fruit remains the legal property of the tree owner. Therefore, the neighbour does not have the right to pick and keep any fruit from overhanging branches, and windfalls can’t be collected. As above, where good neighbourly relations exist it is unlikely for the tree owner to ask for the fruit. However, it should be offered to them and then both parties are clear how to proceed and what to do with the fruit in future.

Leaves

Tree owners are not responsible for clearing leaves that fall from their trees into a neighbours garden. If fallen leaves are causing a lot of damage to a property, for example blocked drains, the RHS advises informing the tree owner in writing. This initial contact can be sufficient to reach a solution, for example covering or splitting the cost of the remedial work, or it can form the basis of a record of contact with regards to the issue for any claims or proceedings in the future.

Bats & Birds

The Wildlife and Countryside Act (1981) means it is a criminal offence to damage or destroy bat roosts or birds nests whilst they are being built or used. This means tree works can only be carried out at particular times, in line with when the roosts and nests are unused.

If you know a tree is often used by bats and birds for nesting, the RHS advises you look out for signs of activity such as cracks and small holes, and inform your tree surgeon of your concerns before any work is scheduled. For more information, see ‘Bats and other endangered species’.

Summary

Trees can benefit a property in several ways, but owners and neighbours need to be aware of what they can and cannot do with regards to the tree and any part of it that encroaches into neighbouring properties. Importantly, tree owners must be aware of their duty of care to their neighbours in terms of making sure their trees are safe and not likely to cause damage, injury or harm.

If you are thinking of buying or selling your home, you may find some of these services useful: