Trees the root of a dispute

By Jonathan Goldberg, November 3, 2011
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Joseph from Maidenhead writes: I am lucky enough to live in a modern detached house with a large garden. My house was originally built on land purchased from a wealthy farmer who was my neighbour, until he died some three years ago.

He was a very nice man, but his widow, I am sorry to say, has become impossible to live with. She is increasingly eccentric, rude and hostile, especially to my young children. If their ball goes over her fence, for example, she will not return it and treats them to a torrent of abuse. Part of my boundary fence borders her apple and pear orchard.

More than a dozen of her fruit trees are situated just the other side of the fence. There is also an old and very beautiful mulberry tree whose branches mainly overhang my land. My wife and children have been accustomed for many years to gathering the apples, pears and mulberries which overhang our garden when they are in season.

My wife's fruit pies are famous in our circle of friends, I might add. However, I was astonished to receive a rude handwritten letter from my neighbour last week claiming that we have been stealing her fruit, and threatening us with court action if we do not stop immediately. Am I right in assuming this threat is utter nonsense?

Joseph, I fear that you are about to echo the famous words of Charles Dickens, that: "If the law says that, the law is an ass". For amazingly, she is right. The law does indeed say that.

Under ancient common law, a tree and its fruit belong to the owner of the land upon which it is situated. That means your neighbour. Even though the branches overhang your land, and even when the roots extend under your land as they probably do, the property in the tree, its branches and its fruit, all remain with her. Even if the wind rather than your own hands causes the fruit to fall onto your land, you are not allowed to keep it or eat it without her permission. It still belongs in law to her. Theoretically, she could bring a private prosecution against you in your local magistrates court for theft, or seek a civil injunction against you, so I advise you to take this seriously.

Paradoxically however, the same ancient common law gives you certain rights. You are entitled to lop off the branches of her trees which overhang your land, provided you do not go beyond the boundary line, even by an inch. If you went further you would be trespassing on her land, and she could sue you. If you do lop her trees, the branches (plus any fruit they may bear) still belong to her.

She could bring a private prosection against you

If the leaves and the fruit from her overhanging branches were to cause any nuisance on your land, for example by blocking your drains, you would be entitled to claim against her to abate the nuisance, for example the cost of your plumbers. Oddly, the mere sweeping up of fallen leaves or fruit is not something you can reclaim against her.

A more extreme but common example is where tree roots from a neighbour's land grow underneath one's house, causing subsidence. This can be very costly to repair. The neighbour (or more likely her insurers) are liable for the full damages in such a case. Thus the ownership of trees confers duties as well as rights.

To use a horticultural epithet, Joseph, I would advise you to nip this problem in the bud now, if you can. Get the kids to throw their ball over the fence one last time as an excuse, and send them round with one of your wife's fruit pies in the hope of placating her and restoring a semblance of civilised relations.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC is a leading London barrister. Visit www.goldbergqc.com

    Last updated: 11:58am, November 3 2011