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.

Ask your neighbours for their insurance details and contact their insurers.

You can let them know that the neighbours are employing someone to test if it is their tree causing the problem and that you have already had someone confirm the same. Tell them it has been left to get substantially worse since you first informed the neighbours. Take it from there.

You have given your neighbour plenty of opportunities to put this right and they have not done so. You can take them to court to get an order for them to "abate the nuisance" and pay compensation for the damage that has been caused - basically, the cost of fixing your kitchen floor and anything else that has been damaged. You should consult a solicitor if you want to go down this route. Your home insurance may be able to help with this. Indeed, given that there is damage to your property for which you may be able to make a claim, they may help even if you don't have legal cover.

If you don't want to go down the legal route, you can cut the roots back to the boundary and put in your own root protection.

Its a protected mature tree so:

• sodding great fine and order to replant, depending on the amenity value of the tree
• risk of heave
• risk of damage if tree falls
• destruction of neighbour’s property

Root barriers are the stock answer in this situation. A vigilant tree officer might be interested in the damage caused to roots by the neighbour’s building work if proven.

This is down to the insurers to sort out - the OP’s current or previous insurers who would assess and chase the neighbours’ insurers for payment.

OP has already obtained a felling order from the council, the problem is exercising it against the neighbour's non co-operation

Is the council not concerned about damage to your listed building? Have you approached your local councillor and MP?

Are they aware that the neighbour will not allow you to deal with the tree? ( Which won't necessarily solve your problems).
Often council departments don't communicate with each other anyway, so contacting your elected representatives might help.

There is a protocol in place between insurance companies to deal with exactly this issue - I.e. where the claimant has swapped insurance companies but there was an issue that obviously started prior to the new insurance.

It needs to go back to your current insurers and ask them in writing how they intend to deal with it. If they refuse go to your original insurance company and ask them how they intend this matter should proceed. If they refuse the ombudsman will tell them how it should be dealt with.

I would avoid litigation because it will cost you a lot of angst, a lot of money, and achieve the same outcome as going through insurance, but may well take several years.

How is it nothing to do with your insurers? You’ve got damage to your property - possibly caused by heave and / or tree roots. This is effectively a subsidence claim. Do you have that sort of cover?

Having re-read, I see your insurers say this is nothing to do with them. I would seriously question that. Ask them to justify their position.

I wouldn’t agree to any visits from anyone until you have taken legal advice. It might be that those visits are needed but you will want appropriate people there and evidence taken etc so don’t just agree to anything now as it may negatively impact you further down the road.

I’d also agree regarding the involvement of insurance companies. The wording of the policy matters. Otherwise, if the damage occurred during the period of insurance of another policy, then try approaching them.

You really should have disclosed the damage when obtaining cover though.

Yes. I think this is the crux of the matter. The current insurance company won't want to pay out or handle an existing problem that was not declared when taking out the policy.

Tbh OP, you might end up in real difficulty with your current insurer for failing to disclose what is effectively subsidence. You may want to consider formally notifying them as you could see your policy voided if they have a think about what you’ve told them.

as explained several times in the thread, it was an existing "situation" that was not declared to the insurer at point of taking out the policy
that is a standard exclusion clause from polices and is precisely why current insurer is justifying not engaging with the OP

This is incorrect and I refer you to my previous post.

It sounds as though you’ve tried the nice route to no avail. You may need to now go to solicitors (or at least threaten to - it might spur them into action). I think a dispute involving solicitors would show on a search if you were to try and sell your house so be prepared for that. Sounds so stressful.

A neighbour dispute is the better of 2 evils here

Agreed.

Thanks everyone for the additional replies. I’ll come back on later after the children are in bed to look properly.

@kirinm the reason we didn’t tell the previous insurers was that the floor was just very slightly affected at first- it’s such an old floor it’s quite wonky anyway. Then my husband changed insurers and didn’t mention it as I suppose the issue was so slight it was barely a thing. Then over spring and summer it’s just gone mad… my husband made an error when he said he first spotted the damage (when insured with the previous insurance company) basically was too honest with the new insurer. When we realised which tree it was we started to take proper action. Too late though. What a mess.

Next door have said today that going through their insurance is not an option so they mustn’t have that third party liability thing.

Surely this is an insurance job!

I would be going back to your insurance company to sort it out.

Oh sorry, ETA I have seen the change of insurers issue. Not good.

Solicitor, then.

Maybe the builders, surveyors planning dept or council had third party insurance when they cut the roots when they built the extension, someone must know what was done to the tree and the potential problems it would cause if no roof barrier was put in place, I wonder if they were advised at the time that this could cause damage or suggest the tree was felled.

Tree roots are not subsidence! Very different scenario.

Im amazed the walls are still ok. The house must have very shallow foundations for the roots to get underneath them. I think a solicitor is the only way. @prh47bridge Can the op cut back the roots on her side if a tree has a TPO? These TPOs on trees are not meant to allow them to damage neighbours houses.

If you don't want to go down the legal route, you can cut the roots back to the boundary and put in your own root protection.

wouldn’t this be the most sensible way forward?