A tree belongs to the person who owns the land on which it grows. However, where the roots of a tree encroach on land owned or occupied by another that person is generally entitled to chop back the roots to the boundary line. They do not need to obtain the owner of the tree’s permission before removing encroaching tree roots, although if you do intend to remove any tree roots that encroach on your land it is generally a good idea to inform the owner of the tree that you intend to remove them before doing so. It may also be sensible to involve your insurers or the insurers of the owner of the tree.
If you do intend to remove encroaching tree roots you should bear in mind the following matters:
The possibility that you may commit a trespass
If you remove tree roots beyond the boundary line without your neighbour’s permission then you will commit a trespass and a claim for trespass could be pursued against you through the Courts.
If you are in any doubt as to where exactly the boundary lies you should, therefore, obtain legal advice.
The possibility that you may damage the tree
If by removing the tree roots you damage the tree the owner of the tree could bring a claim against you for trespass. You should not put poison down to kill off the encroaching tree roots as poison is likely to kill the tree. It may also be worth exploring other options than removing the tree roots, such as the installation of a root barrier, to lesser the chance of damage to the tree.
If you intend to remove a lot of tree roots or very large tree roots or if the roots are very deeply rooted it may be sensible to employ a tree surgeon or arborist to carry out the work for you. Normally they will be insured against any such damage although you should check that they are before employing them.
The possibility that you will cause damage to property or injure a person as a result of removing the tree roots
If your action were to result in the tree damaging property or injuring a person then the owner of such property or a person so injured may claim “damages” (compensation) from you.
This is another good reason, if you intend to remove a lot of tree roots or very large tree roots or if the roots are deeply rooted, for employing a tree surgeon or arborist to carry out the work for you. Again, you should check that they are insured against any damage, loss or injury sustained, before employing them.
The possibility that the tree may be the subject of a tree preservation order
If the tree in question is the subject of a tree preservation order or situated in a conservation area you may need to obtain permission from your local planning authority before carrying out work.
If you contravene a tree preservation order or carry out work on a tree situated in a conservation area you could be prosecuted and, if found guilty, fined.
Ownership of the tree roots once they have been removed
The owner of the land on which the tree grows remains the owner of the tree roots even after they have been removed. For this reason you should return the roots to the owner of the tree or obtain his consent for their disposal. If you fail to do so then your action will amount to theft.
If you intend to remove tree roots it is generally a good idea to ask the owner of the tree what he would like you to do with them once they have been removed rather than simply throw them back into his garden as this may cause annoyance to your neighbour. If you are not able to speak to the owner of the tree for whatever reason it is a good idea to write to him explaining that it is your intention to dispose of the tree roots within say 7 days of their removal (or perhaps a longer period if your neighbour is on holiday, for example, at the time) if he does not in the meantime confirm that he would like them returned.
In the majority of cases the owner of the tree will not wish for the roots to be returned to him.
Notifying the owner of the tree of possible damage to your property
If you are worried that the tree roots are causing damage to your property you should notify the owner of the tree of your concerns. The reason for this is that the owner of a tree will not be liable for any damage caused by its roots if they do not have notice of the damage being caused.
Notifying your insurers of possible damage to your property
If you believe that the tree in question is causing damage to your property it may be a good idea to contact your insurers before carrying out any work. It is in their interest to get involved before any further damage is caused and for this reason they will probably arrange and pay for the work to be carried out.