Neighbour’s fallen tree caused damage to the garden of my rental property.

by Lawrence Squid

12:40 PM, 14th May 2014
About 7 years ago

Neighbour’s fallen tree caused damage to the garden of my rental property.

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Neighbour’s fallen tree caused damage to the garden of my rental property.

A large neglected tree in a neighbour’s garden fell during high winds in February, damaging my garden. My fence was uprooted, along with a section of paving. This was due to the tree roots extending under the fence and paved area of my garden, they were ripped up as the tree fell, leaving a large hole. Lawrence Squid - Property118

I contacted the owner of the property. She informed me that she was insured & would sort out the damage.

Some work was carried out to cut the tree up, but this has now ceased. No activity for several weeks. I’m told that the man doing the work has hurt his back.

Three months have elapsed since the damage occurred.

The owner says that I should claim from my insurer and that they will then counter claim from hers.

I don’t want to involve my insurer, why should I?

I’ve given her 14 days to get the matter resolved. Failing this, I will get the damage to my property repaired and invoice her for the cost.

She now seems content to ignore the situation, which affects another garden in a similar way.

My tenants have lost the amenity of a garden, for which they are paying. So far, they have tolerated this.

Any advice would be gratefully received.

Thanks

Lawrence

Comments

John Daley

12:30 PM, 15th May 2014
About 7 years ago

Reply to the comment left by "Joe Bloggs" at "14/05/2014 - 13:32":

Sorry Joe with regard to liability you are just not correct.

It is well established in case law that the owner / occupier of land is responsible for ensuring that trees on their property cause no damage or injury to others. You have a duty to ensure that your trees do not cause injury or damage, under Occupiers Liability act and under Heath & Safety at Work Act.

Not wanting to be liable is not, as always, the same as not liable.

Therefore the neighbour is responsible for all the losses and their insurers should pay for everything. If your insurance company bumps your premium for this then change them for one who does not.

Joe Bloggs

11:42 AM, 16th May 2014
About 7 years ago

Reply to the comment left by "John Daley" at "15/05/2014 - 12:30":

dear john,
how much thought have you put into your post.
firstly the h&s at WORK acts only apply to work scenarios (the clue is in the name of the act). i wont use the word 'stupid' like you have done: http://www.property118.com/heating-cost-control-hmos/65677/comment-page-3/#comments
secondly an act of god will not be defeated by the occupiers liability act.
third before telling me im wrong, back up your contentions with some justification, i.e. what are the names of the 'well established in case law that the owner / occupier of land is responsible for ensuring that trees on their property cause no damage or injury to others'? if they are so well established why havent you provided links? the key point is the tree fell in a storm:
http://articles.mcall.com/2011-11-02/news/mc-watchdog-tree-damage-claims-20111102_1_limb-tree-damage-property
and your final piece of advice shows naivety as new insurers will require full disclosure of claims and this will inevitably increase premiums more than having a clean claims record. isnt that obvious?

John Daley

15:00 PM, 16th May 2014
About 7 years ago

Reply to the comment left by "Joe Bloggs" at "16/05/2014 - 11:42":

Joe,

The HSWA extends your responsibility to those who are not employees and therefore not at work. Please read the terms of the Act properly.

I have read my post in this thread several times and can't see the word stupid at all. If I have used it in another post it probably refers to that thread only.

In terms of cases the one I am thinking of is Poll v Viscount Asquith 2006. In terms of experience I have dealt with several cases where damage has been caused by neighbours trees and the tree owner or his insurance company has always paid regardless of the weather.

In terms of Act of God as a defence you need to establish that an act of God is an unforeseeable natural phenomenon. Explained by Lord Hobhouse in Transco plc v Stockport Metropolitan Borough Council as describing events;

(i) which involve no human agency
(ii) which is not realistically possible to guard against
(iii) which is due directly and exclusively to natural causes and
(iv) which could not have been prevented by any amount of foresight, plans, and care.

Which seems to me to be a pretty high test for any tree owner to meet.

Having spoken to a broker recently I understand that some insurers will fully discount any event for which you have no responsibility and can establish that the liability was entirely with the third party.

Happy now ?

Romain Garcin

17:00 PM, 16th May 2014
About 7 years ago

Reply to the comment left by "John Daley" at "16/05/2014 - 15:00":

After a quick glance, it seems to me that the case mentioned (Poll v Asquith) is about negligence because the tree was not in good condition, was not properly inspected periodically and may have been left on the road after its fall, which I think goes along the lines of what has been said in this thread re. potential liability of the tree owner.

As for the test above to define an act of God, it seems to me that trees falling during a strong storm would easily qualify if they were in good condition at the time.

In Lawrence's case the key may well be exactly how was that tree 'neglected'.

Jeremy Smith

2:10 AM, 17th May 2014
About 7 years ago

Reply to the comment left by "Lawrence Squid" at "15/05/2014 - 09:36":

Hi Lawrence,
Since you suggest just 'taking it on the chin' and paying for it, I agree, it is the easiest solution, it gets the job done, and keeps the tenants happy, with them knowing that you are a good landlord who gets problems sorted out!

- In your position, I would talk to the neighbour to see if they would give you a contribution towards the costs of the damage that THEIR tree has caused, after that, if necessary, put some pressure on them to pay a contribution to the cost, perhaps suggesting a small claims court claim from you.

Joe Bloggs

10:21 AM, 17th May 2014
About 7 years ago

Reply to the comment left by "John Daley" at "16/05/2014 - 15:00":

Dear john,
No I’m not ‘happy’ with your ill considered posts for the following reasons:
1) H&S ACT WORKS ACT – you are incorrect. The Act only has relevance to non-employees if the occurrence arises out of a work situation. How can a tree falling over in a storm be a work occupation situation????? And how can an act about occupational health extend a duty when no one was injured in a non-work environment???? http://www.hse.gov.uk/legislation/hswa.htm
2) STUPID – Ive provided you with the link above where you called other posters stupid.
3) The circumstances of the case of Poll v Viscount Asquith 2006 bares no resemblance to the circumstances of this matter as:
- storm/act of god was not involved (only moderate winds which caused the stem to fall as there was a structural defect in a tree limb). Ive said throughout that act of god is highly relevant.
- The circumstances described by Lawrence squid are of the tree being ‘uprooted’ which is not a structural defect nor is it the same as a limb falling.
- The defendants are owners of a large estate (thus they are not normal residential owners and so satisfy the test of foreseeability mentioned in my first post). Paragraph 9 refers to the ‘…responsibilities of these tree owners…’!
This case turns on whether the tree inspection was negligent.
http://www.qtra.co.uk/cms/index.php?section=168

4) YOUR EXPERIENCE - perhaps you managed to get insurers to pay because you misquoted acts and caselaw. You say nothing about whether your clients neighbours were merely laypersons or satisfied the test of foreseeability. Sometimes small payments are made without prejudice to liability just to get rid or for goodwill.

5) ACT OF GOD – as has already been stated a storm is considered an act of god and the tests you cite add nothing to the contrary.

6) INSURANCE RENEWAL PREMIUM – the Chinese whispers from your broker are not very persuasive. My experience of no-fault claims is that premiums are always loaded at renewal. IMO insurance is for big claims rather than small.

Therefore, in conclusion my initial post was correct. The storm was an act of god and this cannot be trumped by statute. Even if the residential neighbor was landed gentry or an arboriculturist, if the tree was uprooted in storm force conditions then no liability would attach.

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