In this week’s article I am going to briefly discuss a topical issue of the ownership of trees or if your neighbour owns trees and how it can affect you.
Overhanging braches and encroaching roots.
Under our Common Law system (that we inherited from our neighbours in England) a person may cut back any branch or root from a neighbours tree that overhangs or encroaches onto his or her property. The Courts deem the transgression of roots and braches as constituting a nuisance and, as such, one has the right to abate or stop this nuisance. It is always appropriate to get your neighbour’s consent in order to avoid a breakdown in relations.
When consent is withheld it is possible to obtain a Works Order under Section 45 of the Land and Conveyancing reform Act 2009 in the District Court. This Court Order may allow an individual conduct works in a situation where there is no consent from the adjoining Land Owner and the works can take place without fear of accusation of trespass or criminal damage.
Dangerous trees and personal safety.
In a situation where it is feared that a neighbour’s tree may fall and cause a hazard to personal safety and/or property and where the consent to fell the tree is not forthcoming it will be necessary for a person to make an application for a Section 45 Works Order. In these situations the Court will consider all of the necessary factors and may even adjourn matters to allow the parties to have the trees examined by an expert in order to assess the risks of the tree falling.
A falling tree causing personal injuries.
In a situation where a tree falls and causes personal injury then the Courts will ask the question as to what an ordinary, prudent land owner would have done or would have been expected to have known in relation to a dangerous tree that falls and injuries another person or property. In this way the law seems to indicate that the reasonably minded tree owner, particularly in towns or beside busy roads, should exercise greater prudence in checking their trees for defects as the risks of not doing so are far greater than for a tree owner in a County lane. There was a case about this in County Mayo recently where there was a fatal accident caused by a fall of a seventy foot high Ash tree across the public road. There were some defects but they were high up in the tree. During the course of the case it was decided that these defects might be apparent to an expert but the Court did not think that every farmer in the Country needed to employ an expert to examine every growing tree that is beside the highway. The important thing is if you suspect there is a defect in the tree you should have it examined by an expert. It is also extremely important to ensure that the public liability aspect of your household insurance property covers damage caused by trees and shrubs.