Damage by tree roots

The following Property Disputes practice note provides comprehensive and up to date legal information covering:

  • Damage by tree roots
  • Liability
  • Duty between neighbours
  • Causation
  • Foreseeability
  • Practicable measures available to minimise or avoid damage
  • Reasonable response to the damage
  • Remedies
  • Highway trees

Damage by tree roots

Liability

The leading case on damage to property caused by encroaching tree roots is Delaware, in which the House of Lords stated that liability is to be determined by applying the concepts underlying the law of nuisance, namely reasonableness between neighbours (real and figurative) and reasonable foreseeability. The court confirmed that ‘the label nuisance or negligence is treated as of no real significance’ and that ‘the concern of the common law lies in working out the fair and just content and incidents of a neighbour’s duty rather than affixing a label and inferring the extent of the duty from it’.

In particular, liability is determined by the answers to the following questions:

  1. what is the duty between neighbours with regard to trees?

  2. did the roots of the tree cause damage to a neighbouring property?

  3. was that harm reasonably foreseeable?

  4. were there any practicable measures that could have been taken to minimise or avoid the damage?

  5. was there a reasonable response to the damage?

Duty between neighbours

An otherwise lawful act on a person’s own land becomes an unlawful private nuisance when the consequences of that act:

  1. cause an encroachment on his neighbour's land, or

  2. cause physical damage to his neighbour's land, or to buildings, works or vegetation on that land, or

  3. unduly interfere with his neighbour’s comfortable and convenient enjoyment of his land

In addition, an

Popular documents