Problems with trees and Hedges
Updated 6 November 2017
Words you may need to know
Established - accepted as true
Restrictions - limits, things you can't do
Excerpt - a section or passage taken from a book
Occupiers - someone who lives in a place
Vendor - the person who is selling
Obligation - duty to do something
Heirs - somebody who holds the right to receive a property, position, or title of somebody else when that person dies
Servitudes - A servitude is a right to make use of someone else's property or to stop a person from making certain use of his own property.
Boundaries - the official line that divides one area of land from another
Reference - mention or calls attention to
Illustrated by a number of' authorities - legal texts/books or case law states the legal position
Enclosure - an area of land surrounded by a fence, wall, or other boundary
Prohibited - forbidden/ barred
Negligence - failing to do or failing to provide so that damage or quality is affected
Nuisance - a pest, bother or annoyance
Distinctions - a difference between two or more people or things
Liability - a legal responsibility
Not actionable - you could not take any action against the person e.g. sue them
Who owns trees must be established as it is the duty of the owner to trim back branches which grow over the land of a neighbour.
Trees may sometimes be a shared responsibility when they grow on a shared boundary. There might be restrictions on cutting trees. These will usually be noted in the contract of sale at the time of purchase, so it is always a good idea to check this first (your lawyer can translate your 'deeds').
If you have a problem you should speak to your neighbours first, or write to them, asking for the trees to be cut. An offer to pay some of the costs can be helpful. Only if this type of approach fail should you consider legal assistance.
This is a book produced by the Jersey Tree Advisory Council for a seminar on 29th September 1993 and is entitled Trees and Humans'. The excerpt is from the section by Advocate A J Dessain and is titled Trees and the Law'.
This deals mainly with the private law relationship between neighbouring owners or occupiers and whether a person or a company. It can also include public authorities if those public authorities are landowners or occupiers.
Trees can be the subject of contractual rights on or near a boundary. The contract may be between the landowners or occupiers themselves but stops when one of them no longer occupy the land. There may be an agreement in a registered contract passed before the Royal Court by way of a servitude. A servitude is a right to make use of someone else's property or to stop a person from making certain use of his own property. The rights continue from one owner to another and are attached to the land rather than to the actual person making the agreement. For example, on the sale of land, a vendor (seller) may put an obligation on the buyer and his heirs not to allow trees to grow above a certain height within a certain distance of the boundary. Contracts often refer to boundaries by reference to a hedge.
These include party hedges and banks. These are illustrated by a number of' authorities.
(a) The co-owner of a party hedge may remove it up to the limit of his property provided he builds a wall on this limit: Coûtume Reformée Article 668.
(b) The owner of a bank which is not party owned but which separates his lands from his neighbour must maintain the bank as an enclosure between the properties: see Le Sueur -v- Bois (1888).
(c) Arbres de haute futaille (or fully grown trees) must not be placed or planted on banks which are to the south of land belonging to others (Code of 1771). There is an exception where they are allowed to be grown "en taillis" (that is where the branches are cut back) as one often sees in trees along field boundaries provided that cutting occurs at least every eight years see Pirouet -v- Bois (1885).
(d) Every owner is duty bound to trim branches which grow over the land of a neighbour see Hanbury -v- Smith (1898). The owner may be forced to undertake this work by a neighbour commencing an action in the Royal Court and such person cannot cut them himself see: Pirouet -v- Bois.
(e) There is an exception/ however, where the roots encroach on to another's land in which case he may cut them back himself: see Basnage but only up to the depth of a plough.
(f) Every owner has a right to enclose his own property provided he conforms to any rights of way or servitudes charged on the property. Therefore, if the neighbour has a right of way he cannot block that right of way by planting a tree or hedge. Many hedges especially thorn hedges in Jersey provide a useful method of keeping cattle in. Generally speaking in my view, where animals stray on to others property or the highway, the landowners are not responsible nor where the animals escape inadvertently in the absence of negligence. This may however be affected by the frequency of escape and whether warnings have been given.
(g) Certain boundaries have a "relief" that is an 18 inch wide strip of land running alongside a boundary on which there is no right to interfere in any way, for example, raising the height of that strip of land or building on it. The reason is thought to be that where a boundary is "with relief" it would be unfair to permit an owner to build right up to the boundary without the consent of the other landowner as to do so would prevent the other landowner's plough reaching up to the boundary so depriving him of the use of his own land. Examples of boundaries with relief include walls, gables of houses, ditches small raised banks (known as contre banques) banques avec plantes or les vieilles épines sur les fossés (thorn bushes in ditches). In this case the measure is taken from the centre of the banque, a banque sans plantes has a relief of only 6 inches. Although I am not aware of any authority I see, no reason why the planting of trees on a relief should not be prohibited for the same reason as a building of a wall. Some boundaries have party hedges and some properties have a right to join up to the gable or a wall along the property in which case there would be no relief. Please note a 'Jersey inch' is not the same as an imperial inch.
(h) There is doubt over fruits falling naturally from branches overhanging another's land Article 673 of the Coûtume Reformée says that these fruits belong to the owner of the land on to which they have fallen. However, Le Geyt says they must be divided between the parties. Le Gros, on the other hand, says that they belong to the owner of the tree who may enter his neighbour's land to collect them. The Rectors have right to the epilure that is the wood cut in and over a cemetery. However there is no right to go on to your neighbours land to prune a tree.
(i) In the old days when hedges had considerable value they sometimes used to be transferred as an asset on death in partage. Today, occasionally hedges forming strips of land are transferred from one neighbour to another. Such transfer requires the consent of the Housing Minister under the Housing Law. It may also require consent from the Minister of Planning and Environment under the Agricultural Land (Control of Sales and Leases) (Jersey) Law 1974.
There are certain other general principles of law that can be applied to trees such as negligence, nuisance and trespass.
If a tree belonging to one landowner causes damage to another landowner then the owner of the tree could be liable in damages for loss or injury. In summary negligence will exist where damage which is reasonably foreseeable is caused by a person falling below the standard required by the law to someone else to whom is owed a duty of care. There must be a duty of care, a breach and damage leading to causation.
Accordingly, if a landowner can be shown to be at fault in falling below the standard required and the other conditions are satisfied he could be liable in damages for the damage loss injury or death that resulted. This would be particularly likely where he was on notice of a dangerous condition. Accordingly, any dead or diseased tree places the owner on risk of a claim. If however, no fault can be shown, no liability would arise. For example, in the great storm much damage was reeked but few claims arose. Payments by insurers no doubt assisted!
In the same way, occupiers of land owe other neighbouring occupiers of land a duty of care not to create a legal nuisance. Nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. This is often related to excessive smoke, noise or smell but can involve trees. There is an overlap to a certain extent with negligence. In relation to the owner of a tree bordering a highway where the tree causes damage or injury to users of the roadway some fault or negligence would need to be shown.
General principles of English Common Law have been applied in cases of nuisance. It goes without saying that negligence and nuisance can well apply where, for example, the landowner is felling a tree and negligence only could apply in the case of a contractor or employee undertaking the work. It would be up to them to ensure that appropriate steps are taken to safeguard the safety of others. Poisonous trees such as yews that grow over a neighbour's land and poison cattle would create a nuisance. There are various distinctions between owners who are not occupiers, owner/occupiers, independent contractors and employees which may affect liability. It is not possible to go into detail but the above provides a general view.
Coming on to someone's property without permission and damaging trees would be considered to be a trespass for which damages can be claimed. Trespass without causing damage is not actionable.
It is probable that there is no duty owed by a landowner to trespassers so if a trespasser is injured by a fallen tree he would probably not be able to recover damages even if the owner/occupier knew the tree was in a dangerous condition. However, in respect of invitees or those with implied consent (such as a postman walking up a drive-way) the normal principles of negligence will apply. The owner or occupier could be liable for the loss, damage or injury.
Control of High Hedges
Please see page 11.8.52.L8