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Neighbour wins subsidence hedge dispute

A new legal ruling means that homeowners are more likely to face huge bills for subsidence damage caused to neighbouring properties by trees and hedges.

A couple have won a legal case against their neighbour whose cypress hedge had caused subsidence at their home.

Subsidence is the slow sinking of a property’s foundations.

Neighbour’s hedge causes subsidence

The case involved a couple, Mr and Mrs Khan, whose neighbour, Mrs Kane, had a 10 metre-high cypress hedge on her land close to their house in Harrow, north-west London.

The hedge had caused subsidence to the Khan’s home after its roots spread.

But Mrs Kane said she was not liable because she could not have reasonably foreseen the damage.

The judge accepted that Mrs Kane had not realised her hedge could put her neighbours’ property at risk.

However, he said that a "reasonably prudent landowner" would have realised her hedge could put the neighbouring property at risk, and found against her.

Neighbour should have been aware of risk posed by her hedge

The court found that there were several factors which should have alerted Mrs Kane to the danger posed by her hedge.

These included its height and proximity to the Khans’ home, the fact it was in poor condition, and also widespread media coverage of the risk of tree-related subsidence on clay-based soils.

The amount of damages payable were, however, reduced by 15 per cent to reflect the fact that the Khans should have informed Mrs Kane sooner about the issue.

Ignorance ‘no excuse’ in subsidence case

In his precedent-setting judgement, heard at the Technology and Construction Court - a division of the High Court - Mr Justice Ramsey ruled that ignorance was no defence against such claims.

Previously, defendants have escaped liability by arguing they did not realise their trees were likely to cause subsidence.

But this new ruling means that individuals will instead be held liable by the courts if they could have "reasonably foreseen" the damage caused.

This could in turn open the door to a rise in the number of legal claims.

It reinforces the need for homeowners to ensure they have adequate home insurance in place to cover possible compensation bills.

Why home insurance is necessary

Not only does buildings cover mean that you can make a claim for damage to your own home – whether it is caused by neighbouring trees or your own – but it also protects you against liability claims.

Malcolm Tarling from the Association of British Insurers (ABI) says: "Buildings insurance will usually cover subsidence to your property, as well as your legal liability for damage caused to neighbours’ property.

"So, for example, if a tree on your property damages another property then for your insurer to pay for the damage caused it would have to be established that you were liable."

But Tarling adds that just because there is damage, does not mean you or your insurer have to pay to put it right.

‘Take precautions’ against subsidence

"You may be able to show that you had taken reasonable precautions to deal with any potential risk or you could not have reasonably have known of the risk.

"But if the claimant can show that you were aware of the potential danger and had not acted then this will increase their chances of being able to claim against you."

The case of Khan vs Kane means that there is now an added incentive to put buildings insurance in place given the increased risk of being successfully sued for damage to a neighbouring property.

Causes of subsidence

The ABI says that shrinkable clay soil and a lack of rainfall are the chief causes of subsidence.

Experts believe that this year’s largely dry summer could lead to a rise in the number of cases.

The ABI has a guide on protecting your home from subsidence damage and how close to a property certain species of tree can be safely planted.

Oaks and elms should all be kept at least 30 metres away, for example, while apple trees, pines and magnolia can be planted at a distance of 10 metres.

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Chris Torney

Chris Torney

Chris is the former personal finance editor at the Daily Express. He's been a journalist for more than 10 years and contributes to a wide range of finance and business titles.Read more from Chris

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