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.

Op, did you ever get a surveyor in to look at the wonky floor when you first noticed it, was it wonky when you bought the house.

@MissMoneyFairy we had the top survey done when we bought the house ten years ago - it’s just so ancient that everything is wonky. Doors, windows, ceilings, everything. But that’s the character of the house. The floor hadn’t been an issue in any way until next door messed with the tree when they extended their property 😩

@PhilMitchellsleatherbomber next door have said in no uncertain terms that we must not damage/cut the roots on our side (I think we can legally but we don’t want to cause any issues with further roots coming out into the older part of the house) @TizerorFizz very minimal foundations on the kitchen which was built around 1790 and probably nothing much on the really old part which is another hundred and 50 years older.

@StewkeyBlue do you think the previous insurers will just wash their hands of it then? 😖😖😖😖

@MissMoneyFairy that’s a really good point about chasing their builders…. I BET they will claim that they didn’t cut/damage the roots but they must have done!

If they are listed houses, the trees have tpo and the extension needed planning permission and building regs hopefulky someone would be able to find out what work was done, I'm no expert.

In a very dry summer it’s possible the tree needed a new source of water. Under your house might be a good source if other trees are competing for water nearby, Has the reason the tree has done this been properly explained.

I assumed little or no foundations which makes it even more surprising the walls are not affected.

The insurance co would never ever have known your floors were uneven. It’s fairly normal for old houses.

Your neighbour is legally liable for the damage to your property. You are entitled to cut the roots back to the boundary. Normally you'd have to take care to avoid killing the tree but as there is permission to fell it that is not an issue. It may not fix the problem and you want the cost of relaying your floor anyway.

Your previous insurers should be taking this up for you. If your neighbours have liability cover they will recover the costs of any work from your neighbours insurers and that should include relaying your floor,

You either get your previous insurers involved as that is when the problem began or you get a solicitor and sue your neighbour.

Stop being a doormat or you will be massively out of pocket.

She would need permission from the council. Given that it seems they have already approved felling the tree, that shouldn't be a problem.

Would cutting back the tree roots.which will be massive cause more damage. They will grow back and need root barriers..

Involve solicitors. Your contents insurance may include legal cover.

@anyolddinosaur Previous insurers won’t touch this. No premium paid and it’s not up to them. That time has passed. It’s the current insurers or the op if neighbour isn’t insured.

Premium was paid at the time. Insurers try get outs all the time and the Ombudsman pulls them up on it.

@anyolddinosaur That is NOT the point. You cannot go back to a previous insurer. Everyone knows that surely? The opportunity has gone. The new insurers obviously expected honesty. If root damage was already suspected, it could be the house was not insurable. Changing insurer was folly but you cannot go back as you couldn’t with car insurance or any other insurance product. Doesn’t work like that.

They had a contract with the insurer and that contract covered subsidence. You can take action under contract law for up to 7 years after the end of the contract.

However what I did not realise was that there is an industry agreement for handling a change of insurer, referred to in this Ombudsman case https://www.financial-ombudsman.org.uk/decisions-case-studies/case-studies/insurer-says-previous-insurer-liable-subsidence-claim#new-insurer and the agreement itself is here https://www.abi.org.uk/globalassets/files/subject/public/home-insurance/2017/abi-domestic-subsidence-claims-agreement-and-guidelines-december-2017.pdf

I fear that the case may need to go to the Ombudsman if the current insurer states they would have refused cover if the owner had disclosed a known issue.

So they go to their current insurer and if necessary then go to the Ombudsman.

OP you should have gone to your insurer as soon as you realised tree roots were an issue. If your current insurer claims it is nothing to do with them you go all the way through their complaints process and then take it to the Ombudsman. If you have incurred costs on specialists reports since the insurer's refusal then you claim those costs as well as the cost of remedying the problem, because your insurer should have undertaken the investigation.

It Is not 7 years, it’s 6. The terms of the contact - the insurance policy - matter and nobody has any idea what they say or what it covers.

You can go back to a previous insurer if the claim event (i.e. the commencement of the damage) occurred during their policy period. The right to claim doesn't expire after the end of the policy.

The insurer might resist on the grounds of late notification and might quibble over whether the evidence supports the date of damage claimed but those are separate issues and should be challengeable.

There is a lot of confusing "information" on this thread. OP needs to go to her broker and really push for the former (or current) insurer to accept the claim and be willing to take it to the Ombudsman if necessary.

This looks relevant to me.

I’m describing the risks of deliberate damage to a protected tree. However you can’t just unilaterally destroy someone else’s property even if the TPO is removed. The council don’t own the tree, its “permission” to remove, not an order.

Much more importantly though, removing a tree in this situation can cause heave. Root barriers protect the properties without creating the risk of heave, especially on old properties with the shallower standard of footings is common. I’d be surprised if tree officers and soil specialists didn’t raise this in all the reports done.

there are many comments in this thread that you could post "clarifications" why you single my comment out (which was not even addressed to you) is a mystery.
I clearly stated the problem is neighbour non cooperation in the felling, not playing word games over use of "order" rather than "permission"

perhaps you would care to do the same for all the posts since ?

You need to get in touch with the conservation officer who works for your local council. That would be my first port of call before I did anything.
Your house is grade 2 listed therefore has important historical value to the local area, whether the tree has a preservation order is somewhat neither here no there if its damaging the property, especially if permission has been granted and there dragging there heels.
I would holdoff on any sample takings until I have had the Conservation officer round, having one in your corner especially with such a important structural issue would does hold a lot of weight. They also have a huge amount of knowledge when it comes to movement, heave etc.

Hope this helps ! x