November, 2013 - Katie Logan
roots and Japanese knotweed. We also round up news on business rates and the new CRAR
regime and then finish with a stark reminder about the perils of remaining in occupation once a
lease has ended.
Tree roots and neighbouring properties
In a case heard last month, the Court clarified when a property owner will be liable if roots from trees on its
property cause damage to a neighbouring property. The points to be taken from the case are of importance to
landowners and insurers.
The established test for determining liability for damage caused by tree roots has three stages:
• Have the tree roots caused damage to the neighbouring property and does the property owner have a duty in
relation to the tree on its land?
• Have the tree roots materially contributed to the damage to the neighbouring property and if so, was that
damage reasonably foreseeable?
• Could practical measures have been taken to minimise or avoid the damage and was there a reasonable
response to the damage?
In Khan and Khan v (1) London Borough of Harrow; and (2) Helen Sheila Kane [2013] the Court examined whether
the foreseeability of damage could be determined by the knowledge of the defendant tree owner. Mrs Kane’s
garden contained an oak tree and a 10 metre high hedge. The hedge was just 0.5 metres from the Khans' house.
Whilst Mrs Kane accepted that roots from both the hedge and the oak tree had caused damage to the Khans'
property, she denied any liability for the damage on the basis that she was unaware of the risk posed by the trees.
The Court accepted that Mrs Kane had no actual knowledge of the risk from the tree roots. However, it held that
liability was to be based on what Mrs Kane should have been aware of as a reasonably prudent property owner.
The point to note is therefore that liability can attach to a tree owner regardless of whether actual knowledge can
be proved.
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