Legal advice from a Kent solicitor

When you own land, don't forget that you also own the air space above and the subsoil, including everything below the property. Peter Still reveals all

Legal advice from a Kent solicitor

When you own land, don’t forget that you also own the air space above and the subsoil, including everything below the property. Peter Still reveals all

A tree or shrub belongs to the owner of the land on which it grows even if its branches or roots go over or under adjoining land. However, branches or roots that invade a neighbouring property are effectively trespassing. The neighbour is within his rights to chop the offending branch or root along the boundary line and does not need your permission to do so.

One of the most common fears with trees is that their roots will damage house foundations. Although most foundations are able to withstand the odd tree root, it is possible for roots to cause indirect damage through subsidence.

Subsidence is what may happen to buildings on soils such as clay that shrink and expand in response to their moisture content. In summer, (or drought) clay soils shrink, and in winter (or prolonged rain) they expand. It is this movement over a period of time that can cause the damage.

Tree roots will compound the problem as the roots will extract moisture from the soil. If the foundations of the building are inadequate, subsidence will often be the result, causing cracks in the building which sometimes can be quite serious.

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An owner is not obliged to control or remove a tree that is implicated in causing subsidence. However, a failure to do so may result in liability if it is later proved in court that the tree was a cause or the cause of the subsidence.

To claim for damages for tree root damage, it has to be proven that the damage was caused by the encroachment of tree roots, and that the owner of the tree breached the ‘duty of care’ owed to the owner of the neighbouring land.

This ‘duty of care’ is effectively a person’s responsibility not to cause his neighbour any harm. If this duty is breached and the neighbour is caused loss, then the offending person is responsible.

If the tree on the neighbouring property is to blame then the tree owner (or their insurer) may be liable for the cost of repairs. In order to demonstrate liability, evidence should be provided beyond a reasonable doubt that the tree is in fact responsible. It may also be necessary to demonstrate that the damage was reasonably foreseeable and that the owner should have taken action to control or remove the tree.

If your property is affected by the neighbour’s tree roots, the first thing to do is to have the damage assessed and an estimate of the cost of repairs. You must be certain that root damage is indeed the cause. Once this has been established, a negotiated agreement with the neighbour should follow – you should report the matter to your insurers, as should your neighbour.

If your neighbour is unreasonable, then an alternative may be for an arbitrator to be appointed to make an impartial decision. If an agreement still cannot be reached either party may ask the Court to make a ruling. This should only be considered as a final resort as it can be a lengthy and expensive procedure.

So as a responsible property owner, do regularly inspect your trees to ensure that they are not causing damage to any nearby buildings or drains. If you are concerned, then either remove the tree or have the tree heavily pruned – this will reduce the transpiration and consequently the take up of water from the soil. However, before you do either, do take the advice of a qualified tree surgeon.


Peter Still, partner and head of residential conveyancing at Whitehead Monckton, deals with all aspects of buying and selling residential property and has more than 20 years’ experience in advising and assisting clients in their property matters. Having first qualified as a legal executive in 1986, Peter then qualified as a solicitor in 1995, joining Whitehead Monckton the following year. He is also Secretary of Whitstable Round Table.