Tree roots from next door lifting our kitchen floor - no idea on legalities please help!

[mamaonearth]

I’ll try to keep this short!
Just under two years ago our neighbours built an extension to the side of our property but on their land. Both our houses are grade II listed and they extended a barn-type structure. As part of these works they cut through or damaged the roots of an enormous walnut tree that is in their garden. Fast forward a year and our kitchen floor (which is original brick and around 300 years old) started cracking and lifting.

We lifted our patio and traced the (large) roots back to their walnut tree. Clearly the damage to the roots has caused the tree to go into stress and send out roots in a way it hadn’t before.
We met with them, showed them the floor and they didn’t seem too bothered but said they would investigate. They have since dragged their heels over this for months and months, despite a number of meetings as the floor has grown increasingly worse.

Eventually we took matters into our own hands and investigated the possibility of applying to have the tree felled. We did not do this lightly as we live in a conservation area and the tree had a TPO. We had to send a lot of evidence, pictures etc, a report from an aboriculturalist… the council deemed the damage to our grade II listed property so severe that they granted the felling of the tree.

We met the neighbours again and told them that this was an option and that we were so concerned about the damage to our house that we would prefer to have the tree felled. They went mad, absolutely refused and said they would put root protection in. Then after another month came back and said they would reluctantly have the tree felled as proper root protection would cost too much money.

Since then, they have changed their minds again and said they won’t fell the tree (citing possible risk of heave - which we aren’t concerned about as both gardens have plenty of other trees to soak up the water from clay soil) and will cut the offending roots from our side and prune the massive tree to stop the roots from growing so much. We are hugely concerned by this and the likelihood that the tree (which clearly hates its roots being messed with) will then send out more roots in all directions further affecting our 400 year old house.

The latest is they want access to our garden tomorrow to lift the patio again and test the roots to make sure it is the walnut 🫠. The roots lead directly from under our kitchen back to the walnut and a specialist has already told us the roots are walnut- smell of almond etc etc. I don’t trust them at all and worry that they will deliberately take a sample from a smaller tree further away to try to get out of doing anything about it.

We are at a total stalemate. They have said they can’t afford to have our floor re-laid (it would have to be a heritage floor specialist as the floor is original brick and lime mortar). They also won’t pay to replace our damaged patio. Surely they are liable as it is their tree?

Our young children are now tripping over in the kitchen and it’s a hazard for our elderly relatives when they visit. Goodness knows where else these roots are going. I’m so disappointed as we didn’t object too strongly to their extension even though it affected light and view through an ancient window as we wanted to be good neighbours and accommodating. 😔

What can we do next? Our house insurers have said it’s nothing to do with them. It’s honestly so stressful, is causing arguments between my husband and I as I don’t want to fall out with our neighbours and he’s talking about solicitors now, how the saleability of our house will be affected, how he wants to move as it’s so stressful. This is our dream home 😔

Please help! Any advice would be so amazing.

I think this is a legal minefield, see fencing issues and other boundary disputes.
However, my understanding is that anything on or overhanging your property is yours to do with as you wish. Therefore the roots on your title boundary can be felled or killed off. The result of what happens is not on your boundary as presumably the tree would die, so that's where they might have a potential counterclaim as you're then affecting their property deliberately.
As I said its a minefield so get proper legal consultation.

@endofthelinefinally I’m pretty sure they were careful with building regs. They had to scale it all down and not connect to their cottage via a glass corridor (think George-Clark style modern meets old) as it didn’t pass. They were very open and consulted us as it was blocking a window. Changed their plans to put on a glass roof to try not to affect our light as much. We thought they were good neighbours.

@Mumofoneandone yes my husband wants to write a letter basically saying this. They want access to the garden where the roots are but involves leaving our gates unlocked.

@endofthelinefinally thank you for that link. No, we didn’t know this. It’s so so close to our property. We should have done this. It’s so ridiculous, they don’t even use the space. It’s just sat empty. We can literally see right into it from our dining room…

@FirstCuppa yes, I can see my husband is right re solicitors. What kind of solicitor do people use for this stuff!?

I think it would come under boundary dispute, so property law with specialism in boundary disputes or property resolution. Firms with Land Survey experience might also help as they can come and look and advise. If you call firms that look likely they should be able to confirm if they have a specialist.

This is what I would expect the OP’s insurers to be doing.

There may be a question of whether the previous insurer should deal with it in the first five(?) years of the policy as the problem would have been there even if not known.

OP Your insurer should be dealing with this or passing it to the previous insurer and then claiming from the neighbour’s insurer if the damage is confirmed as caused by their tree.

First line of attack would be root barriers rather than tree removal (I’m surprised the tree officer didn’t insist on this if the tree was classified as significant). The other advantage to root barriers is removing a large tree can increase risk of heave in the future.

Any requests for access should then come from the insurers appointed specialists and can be dealt with accordingly.

First it should be taken back to the insurers - this is what we pay them for, to deal with damage caused by or two neighbouring properties. This isn’t a boundary line dispute its damage covered by normal buildings insurance.

Flying solo on this could cost ££££££ for everyone and not achieve the desired outcome.

It was their responsibility to organise the PWA, not yours, so that may work to your advantage when you seek legal advice.
The only issue wrt legal cover on your home insurance is whether your policy is valid, given that you didn't declare the issue with the floor when you took out the insurance.
Insurance companies will look for any excuse not to pay out.

Building regs are not the same as planning permission, so it is worth bearing in mind that if the inspections during and post build were not completed and passed, that would be another point in your favour.

No, that is a security issue and if you get burgled or they cause damagd to your property you will invalidate your insurance. You must not do this, either you're both there, preferably with a specialist surveyor. You need a solicitor who specialises in property damage, there will be online recommendations.

OK you need to go back to the previous insurers who were on cover when the damage first started to occur/ was first discovered. Just because they are no longer your current insurers does not mean that the policy for the relevant year will no longer respond. They might try and fob you off making a song and dance about late notification but keep saying that you didn't understand how it worked and tried to report to the current insurer else etc. You may need to make a formal complaint and if necessary go to the FOS but insurance cover will likely resolve in your favour (unless subsidence was specifically excluded in the policy).

Once insurers are on board they will investigate, gather evidence, identify cause and seek to address it and then carry out repairs. They will also then seek to recover those costs from the neighbours. Whether that is successful or not will depend on whether the key damage to your property was caused before or after the point in time when your neighbours became aware or should have become aware that the tree roots were at risk of causing damage by encroachment. (Even if the damage repair costs can't be recovered, it is abundantly clear that the tree is now causing an ongoing nuisance and your insurers should at least be able to get a court order for injunctive relief i.e. the neighbours ordered to fell the tree or otherwise abate the nuisance at their own expense.)

Get onto this ASAP as the insurance issue could take months to resolve but worth it if it means the insurer then takes on the time and cost of resolving the nuisance and repairing the damage.

In the unlikely event you find yourself without insurance you can still make a court claim yourself for injunction relief and damages for repair costs. As noted above there is a risk that the neighbour might not be liable for the repair costs if the damage was "pre notice" (it can't be retrospective) and there is also the risk that the neighbour may not be able to pay an award for damages anyway. They may have their own property insurance but the policy may not include third party liability cover - some do, some don't.

Good luck. (I'm an insurance panel property damage lawyer and do this stuff for a living but I'm not allowed to advise outside my employment so this is just me sharing my "general knowledge".)

There might be reasons why this is a dreadful idea, but could you not use a chemical herbicide on the roots on your side that would kill off the tree?

Tagging @prh47bridge for advice. She’s a legal eagle.

@honeylulu thank you so much for this, I really do appreciate it. It’s good to know the previous insurers should cover it or what’s the point of insurance?!
it’s really rubbish because we just don’t have pots of money to put into fighting this 🙁

Thank you so much @Darragon fingers crossed for a reply and help x

@CrispieCake I’d worry we’d get into a lot of trouble/the tree would die and fall on someone, potentially our children.

Removing a large tree in an unmanaged way can also lead to "heave", the flip side of subsidence. Heave can also cause property movement and damage.

House insurance, legal assistance.

You need legal assistance and fast.

@honeylulu yes, true. Next door are using the possibility of heave to avoid felling it at all but they also don’t want to put in proper root protection. As long as it is done in stages to avoid heave we would be happy with that but they are stalling with this root cutting and topping plan…

You need to pull yourself together a bit, otherwise they’re going to walk all over you and your house will be fucked.

A fair point @PigletSanders

Friends had problems (subsidence and large cracks) which was traced back to their neighbour's large tree. I believe that they got their insurance company to work it out with their neighbour's insurance company - their neighbour's insurance company paid for everything as it was their tree's fault - so your insurance company should not be worrying about timescales as none of it is down to them - they should be hassling your neighbours insurers instead.

except it costs OP's insurers money to process such a claim therefore, in the real world, they will seek to avoid becoming involved if at all possible.

OP did not inform her current insurer of what, in the insurers' eyes, is a pre existing and known condition, and therefore a specific exclusion when taking on a new policy.

OP can of course keep hassling her own insurers and they may take pity and help, or they may not, in which case she needs to claim directly from her neighbour's insurer. Her own can be asked to divulge who that is, or as has been suggested, go back to whoever her insurer was in past and try to make a historic claim.

The neighbours insurers will only be involved if the policy includes third party liability cover. A lot of household policies don't - mine doesn't.