Tree roots can cause significant damage to houses, either through direct damage to underground structures (for example by breaking into drains or foundations) or by causing indirect damage by changing the water content of the soil, in particular clay soil as is found throughout many cities.
Particular trees such as willow are more likely to cause indirect damage, as a result of their ability to draw water from the soil by the roots. As it dehydrates, soil shrinks, and as it rehydrates after for instance, greater winter rainfall, the soil can swell. The alternate shrinking and swelling can cause movement to structures on or in the soil, and tree roots can contribute to this effect on neighbouring land, whether or not the roots encroach across the boundary into that land. Certain trees cause damage due to their particular fine root structures such as poplars, willows, elms and oaks.
We have specific experience of cases where settlement or subsidence has required underpinning of all of the relevant house/structure affected by the subsidence, and in many cases the damage to the property itself will need to be remedied in addition to steps being taken to either fell the tree or prune the top of the tree to heavily reduce transpiration (the amount of evaporation from the leaves, which results in the tree drawing more water from the soil through its roots).
Claims for Damages Following Tree Root Damage
There is a duty of a tree owner to do what is reasonable to prevent or minimise the risk of damage to any neighbouring properties. This duty arises where a neighbour either knows that the tree is encroaching over the boundary through its roots or branches, or ought to have been aware of this as a result of, for instance, the size of the tree or the obvious position of the tree in relation to a neighbouring property. If in addition to knowing of the encroachment of the tree roots, there is an obvious risk that this encroachment will cause damage, then a duty is established. So, to take the example of a very small tree planted right next to a boundary, a neighbour would know that the tree is encroaching, but there would be no reasonably foreseeable risk of damage as a result due to the small size of the tree. The individual circumstances of each case need to be looked at, but a reasonable proposition is that if there is a large tree near to a boundary, and the boundary is near to a neighbouring property, then it can certainly be argued that a neighbour should have been aware of encroachment, or actually know of encroachment, and that there was a reasonably foreseeable risk of damage as a result of the tree.
A neighbour can be held liable for damage caused, even if some damage has occurred before they bought their property. This is because an owner of land continues a nuisance (and this type of claim is based on a legal nuisance) if with knowledge of the existence they failed to take reasonable steps to bring it to an end.
Proving That Damage was Caused by the Tree Roots
This aspect of any legal claim is known as “causation”. In addition to showing that it was foreseeable that damage would happen, and that the roots were encroaching over the boundary and the neighbour knew of this or should have known of it, every homeowner who has suffered damage will have to show that the damage was caused by the tree roots. There might be many different competing factors, including faulty construction, settlement common to a particular part of the country even where they are no tree roots present, and there might be a number of trees, each of which could be arguably contributing to the damage, and which were on different properties. Although the starting point is to prove exactly what caused the damage, a claim can still succeed if desiccation from the tree roots makes a material contribution to the damage, it does not always have to be the only cause. This is helpful to a claimant where there might be competing causes.
Claims Against Councils
Many claims for damage caused by tree roots are as a result of a local authority failing to take steps to prevent damage from trees found adjacent to a pavement, despite the fact that most of them have regular preventative pruning standards. It is much easier to show that a local council is aware of the potential of damage than an individual homeowner, and as long as it can be shown that the damage was foreseeable, and actually was caused or contributed to by the tree roots, claims against local authorities regularly succeed.
You Must Prove More Than Damage
However, whether in relation to a claim against a local authority or a neighbour, it is important to realise that there is no “strict liability”. The risk of damage must be one which a reasonable person in the tree owner’s position would have regarded as a real risk, not just a vague possibility. So if the possibility of soil shrinkage and subsidence was merely a vague outside chance, then if damage occurs but it is not reasonably foreseeable, then a claim will be difficult to sustain.
What Damage Can Be Compensated?
If damage has been caused that requires building work to remedy, for instance, underpinning, or repairs to cracks, then this can be claimed providing the other legal requirements are satisfied. In some cases, if the damage is on-going, it is possible to apply to the Court for an injunction to force the neighbour to either fell or manage the tree properly so that further damage is prevented in future.
One other area of claim relates to a potential reduction in the value of the property. Even once remedial work has taken place (for instance underpinning) it may be that a property is tainted by the subsidence; meaning that it may be difficult to sell for the same value as a neighbouring identical property that isn’t underpinned, and it may be that insurance premiums are more expensive, and in some circumstances insurance can be very difficult to obtain at all.
Many homeowners may be tempted to allow their home insurers to reach a concluded negotiated settlement with either the local authority or a neighbouring homeowner if they have suffered from subsidence. This may be a big mistake. Most insurers will only negotiate in relation to payment of insured risks, and a reduction to the equity in the property is generally not an insured risk. Any homeowner who has suffered from significant subsidence as a result of tree root damage should consider obtaining expert legal advice in relation to the value of the claim. There is otherwise a significant risk that if you rely upon negotiation between insurance companies you would be left with a property that is worth perhaps 20% less than a neighbouring property, without any compensation having been obtained by your insurance company.
Claims require expert consideration, and in many cases experts of the correct sort need to be instructed, for instance, an arboriculturalist to advise on whether or not the tree in question caused or materially contributed to the damage caused, and specific expert surveyors and property valuers.
Wilson Browne Solicitors are experts in claims relating to tree root damage. We can assist to ensure that your claim is put forward in the correct value, and with the best possible prospects of success.