I recently purchased a house and there is a large garden to the rear. Some time ago the previous owners and the man next door removed the boundary hedge. It was replaced with a wall. There is a very large tree to the top of my garden and I recently had a tree surgeon look at the tree as I would like to decrease the height. To my horror he told me that I should have the tree removed as it is unsafe. According to him the wall that was built has severely damaged the tree’s roots and made it unstable. Can I have the neighbour share the cost because the building of the wall is what has my tree unstable?
The liabilities in this situation are not straightforward and are further complicated by the fact three parties are involved. If this went to litigation the outcome would be unpredictable. However, I will set out some of the background factors as I see them.
It appears that your neighbour and your predecessor in title recognised the hedge as a party hedge and agreed to remove it and replace it with a wall, which they accepted as a party wall – that is, a wall in which they shared ownership and responsibility. They were obliged to co-operate because their respective properties had a common legal boundary. The hedge, and subsequently the wall, was positioned on this boundary.
Their mutual obligations concerned the boundary line and did not involve any space or feature beyond the boundary, except for the narrow space on either side required to accommodate the wall. Each owned the space containing their respective half of the wall and had an interest in the other party’s half of the wall only because it is not possible to build a physical boundary feature such as a wall without building on the required space on either side of the legal boundary. It is difficult therefore, to see how one party would be liable for anything on the other party’s side beyond the width of the wall.
You may feel that your neighbour has some responsibility as the roots either crossed the boundary line or were sufficiently close to it to suffer damage. However, your predecessor was equally involved in the process and apparently had no reservations concerning the work involved and, in so far as you know, did not foresee any problems. If your predecessor did not foresee any problems in relation to anything including the tree on his/her own side of the boundary it would be difficult to expect your neighbour to accept partial responsibility for anything that subsequently arose on your predecessor’s property, which is now your property.
Involving your neighbour in partial liability for a tree on your property has legal implications. I advise that you consult your solicitor. It is likely to lead to stressful neighbourly relationships, and, as stated, litigation would have an unpredictable outcome. I suggest that you first discuss the tree surgeon’s advice with your neighbour, suggest that it should have been removed as part of the hedge replacement work, and ask if he would consider contributing to the cost involved.
Patrick Shine is a Chartered Geomatics Surveyor, a Chartered Civil Engineer and a member of SCSI, scsi.ie
