Ivy removal - who pays?

[WoolyMammoth55]

Hi all, very grateful for any knowledgeable legal input.

We own a ground floor flat in a converted Victorian house. The flat above has recently sold.

The new owners have contacted us to request that ivy on the exterior of the building be removed at our expense as it is blocking the light from one of their windows.

The ivy is very well-established, and no doubt decades old. We did not plant it; in fact one of the first things we did as owners of the ground floor property was to sever it at the roots. Despite this, it's still flourishing, almost a decade on. I think it is self-sustaining from the sucker-like roots in the wall (but I'm no horticulture expert!)

We don't have much spare cash right now and would like to civilly refuse this request but offer them access to the wall to pay for the removal themselves.

Is this an acceptable compromise or is it our responsibility to pay for the removal?

Thanks for any advice!

This is not relevant. It’s relevant who are the freeholders.

OOOH they've only gone and pushed back hard!

"It is our understanding that trees, plants, and shrubs that fall within a flat’s garden boundaries are the responsibility of that individual flat. For instance, when confirming the recent change of building’s insurance, we have been listed as legally responsible for the tree that resides in our half of the garden.

Therefore, it would follow that the ivy, which originates from your patio, would fall under your responsibility."

"Although we appreciate the suggestion, it wouldn’t be appropriate for us to lean out of our window, considering it is several metres above the ground. The only solution will be for you to tackle this professionally."

"We were under the impression that only the communal hallway, roof, front garden, building insurance are shared responsibilities by the freeholders. However, if you have anything from the original lease to suggest the contrary, then please do forward it over."

I think my point would be that the walls of the building are also communal, and that's where the ivy is? Ugh.

And absolutely confirming the arachnophobia theory:

"It is attracting wasps and other insects and we also believe it poses a risk to the state of the brickwork on our building. Please let me know when you have made arrangements for professional removal."

Is it unreasonable of me to feel exhausted just reading this?

I have no idea what to do next really but would really welcome anyone's suggestions for the next email in the ivy saga! x

Obviously IANAL! but I think the "therefore, it would follow..." is working quite hard here:

They have a tree on their side of the garden
The building insurance paperwork specifies that this is their responsibility
This implies that it's NOT a given that the plants on your part of the shared land are your responsibility, hence it being specified for the tree?
And since the ivy ISN'T specified in the same document then most likely it's communal?

Or is that a major reach...??

Honestly, I'd be saying to them "the ivy was there when you decided to buy the flat, so frankly, if its removal was so necessary, then maybe you should have opted for a home which did not have ivy clad walls. To reiterate, the ivy is not rooted to the ground anywhere on the footprint of this property so I am unable to tackle it as I do not have sight nor access to the land it is rooted into"

Gosh, they sound like total arseholes. Are they young? I bet one of them is a trainee solicitor, that reads like a first draft that I’d be amending the hell out of.

Did you say that the ivy is not rooted on your patio any more? As @SecondUsername4me says, that is your first level response.

Do you still have all the docs you got from your solicitor about the freehold when you bought your place? Would be worth taking a look at those to see what they say (I am not a property lawyer so won’t speculate). They, of course, will have all their own advice fresh in their files from the recent purchase so their “under the impression” is surprisingly weak given you’d think they’d have a doc to back up where they got this “impression” from.

You might also point out that they are at liberty to engage a professional ivy-trimmer to cut it back from their window and reiterate that you are happy to provide access from your patio.

“our building” is interesting. Presuming they mean “our” as in the two of them and are not including you and the other owner in, “our” they really do need a lesson in owning a leasehold flat and a share of freehold.

Anyway my main tip would be to take the moral high ground, do not get drawn into in high-handed correspondence- go up, ring their bell, smile and bring them down to show them that the ivy has no roots in your garden and explain how the share of freehold is managed.

You can always tell arseholes by their attempts to use language that they think is legal but is actually just nonsense. Since when did trees “reside” anywhere?

ALSO they have ditched the previous email thread and sent this - with plans attached! - with the subject line:

"Notice to Remove Ivy Originating from Flat A" !

As if I'm now under "notice"?! Oh god.

I really appreciate the advice and yes, I think I will just go up next time they are in and smile nicely and try to explain.

Out of interest, is there any ivy on the exterior of the parts of the building where the third flat (Flat C?) is? Do you think that Flat C will take your side or theirs?

I’m surprised they haven’t employed a burly man to ring your bell, shove an envelope into your hands and yell “You’ve been served!”

I wouldn’t go up there OP, they don’t sound like the kind of people you can reason with. Keep it in writing so you have proof of what has, and hasn’t been said

Well, they already live in the same building and have a key to the shared areas! I would argue the exact opposite- nobody should be getting into an escalating pseudo-legal war of words over email this early on with someone they share a building with and will pass in the hall. Neighbour relations are about communications.

we also believe it poses a risk to the state of the brickwork on our building.

If it's decades old, removing it could well take a lot of the old brick with it...

They bought with the ivy in situ...

Legally speaking, whose responsibility is maintenance of the garden?

Good point, we do each maintain our own sections and then the small front garden is shared. But I'm genuinely not sure if this is a legal requirement or just what we do?

Part of the problem is that we bought in 2011 and although I could find them if pushed, I don't have any of the documents to hand.

My hunch would honestly be that it's not specified, IIRC everything was pretty basic/minimal.

Given that they purchased only a month ago and will have everything in their inbox, I'd think if they had a clear paragraph of the freehold agreement to quote at me then they would have done so?

Oh God, what dickheads.

The ivy is not originating from your property if there are no roots anywhere at the foot of your walls in your garden. Ivy doesn't spring like magic out of the walls, so there has to be a root somewhere. Therefore wheresofore the root, thereto lies the ownership of said ivy.

Since the roots are not on your bit of land, then the plant belongs to someone else. You are entitled to cut back any part of a plant that encroaches onto your land, but you are not allowed to kill a plant or tree belonging to someone else.

The encroachment piece is interesting, because it's growing vertically!

If it's sustaining from decades old roots into the walls, which I think are part of the fabric of the building with shared freehold, then does it mean that it's communal?

Our tenant kindly send photos showing the stems (more like a trunk really! 3 inches thick, a total beast!) are definitely severed and have been for some time. So I can offer for them to examine that themselves.

I’m confused at their insistence it originates from your land, did you not already tell them that the roots had been cut long ago?

It's been a long time since my law degree; but I believe that this will come down to that. The ivy is considered a plant; even though it's on the wall, and therefore whoever has legal responsibility for the garden that it is in is responsible for it's maintenance. That's maintenance; and not removal, unless there's a legal reason that it has to be removed - the Right to Light rules have changed a fair amount since I qualified but I'm not 100% that would cut it.

They've specified the "front garden" is communal; which suggests they think the back isn't, but it'd obviously be in their interests to believe that... You can usually buy deeds online if yours aren't accessible, or your solicitor might be able to retrieve them for you.

Presuming it is joint; you would then go back to reiterate that the back garden is jointly maintained and therefore they'd need to acquire quotes and bring them to a freehold meeting etc; as you originally said. If they don't want to lean out of the window, you can grant them access to put a ladder outside.

If it is your responsibility; you'd need to decide what you were willing/liable to do; if anything, and then when you'd do it. If you don't have the financial means to have the ivy professionally removed, that's valid for a time at least.

as a landlord, everything that encompasses the body of the building ie roof space, foundations and walls whichever floor they are on are all held jointly reponsible by all owners!! I have certainly had to pay for an external window sill replacement in a flat two floors below the one owned by me!

"I’m confused at their insistence it originates from your land, did you not already tell them that the roots had been cut long ago?"

Yes I did! In response they attached this pic (which I assume they dangerously leaned out of their death-trap window to take!) where from their high angle you can't see the bit where the trunk/stem is severed.

There's a good 3 inch gap between the part in the pot and the huge knot suspended in the air, but it's not visible from their windows! So they seem to be calling me a liar :)

Oh it’s variegated. I do think variegated ivy is very pretty!

You said tenant, so you don’t live there?

Maybe just move the pot out of the way to make the point?

The pot is insanely heavy which is why it hasn't been moved! (plus I like the colour) But I can see it might come to that!

Is there anything to them sending me a "notice of removal"? Is that a thing?

I think they've said 'Notice' in writing as they plan to take this further. You have to give X amount of notice to a landlord/owner to complete works before your case is taken on by a third party (although I don't know who they'd take this problem to, I've never lived in this kind of set up). So just make sure you have plenty of photo evidence that this is not coming from your side of the garden.

At this point I'd just be saying sod off mate!

This isn’t about the ivy, it’s spidergate.

I think you may well have to go looking for your paperwork to double check the legal position. You new neighbours sound ‘delightful’ and given an inch will take a mile type people. First the communal / stairs cleaning now the ivy, it’ll be garden pots and laundry next. Let’s face it spiders live in outdoor laundry doing all sorts.

Take a video of you sliding a sheet if white paper cleary between the stump and the pot to demonstrate they aren't connected.

Tell them the date (roughly) they were severed, and empty and remove the pot.