Subsidence

Sandtree

Annemos said:

There is a Zurich case that said a Council could not be held liable if the damage was not foreseeable. As far as I can tell, that means that unless another property (or other properties) have been hit by the same trees (or nearby trees), close to you, then the Council can say your damage was not foreseable. (Your Tree Owners would be in the same position as my Council, I suppose.)

The rulings apply to all tree owners not just Councils, in fact the courts tend to hold Councils to a higher standard than the layman in term of the duty of care they owe others.

You dont need to prove that others have had their property damaged by the same trees but do need to show that the damage was forseesable.  In Khan v Kane the owners of the 10m cypress trees planted 0.5m from Khan's property were held liable because of the position and size of the trees they'd planted and maintained. You just have to consider timelines, proximity, size, species etc but ultimately the hurdle is fairly high

Annemos

https://www.zurich.co.uk/news-and-insight/court-success-tree-root-subsidence-claims-importance-evidence

For info, here is a link to that other case. 

Alex0857

Annemos said:

3) The repairs..... this is where I had great difficulty. My Insurance Company had passed me over to a Claims Validation Company. 

That Claims Validation Company Engineer had been monitoring the property. After the trees were removed the ground recovered and the cracks closed up. So no underpinning needed to be done. (They don't underpin very much these days. They hope everything recovers once the cause of damage has been removed. Monitoring showed that mine was all stable now and would not need underpinning.) 

So like me, you should have their Engineer reviewing your property, I should think there should be monitoring perhaps, to see if movement has stopped. And then that Engineer should be deciding how best to repair your property. (As I say, mine was the Claims Validation Company's Engineer on behalf of the Insurance Company). 

For the reasons in 2) I then allowed their contractors to come in and do the repairs to the brickwork. (The Insurance company is then liable, not you, if something goes wrong....and it did!) I will not go into details, but the work was utterly appalling and negligent and did even more damage to my property. 

I ended up in a huge Complaint situation and luckily the company that was handling the complaint saw that something dreadful had happened and they took over and the repairs had to be completely removed and then re-done. 

So it is a bit of a problem, to say the least. For the reaons in 2) you should not be using your own contractors, but if you use theirs, well...... something bad can happen. 

It is so difficult for us to vet their contractors. I would say get proof of who is actually going to be working on your property (not just the company). And ask for proof that those people have actually worked on Subsidence properties and ask to see photos! Also try and do your own research into the repairs that they suggest. (I ended up training myself to be a builder/Helifix Bar installer!) 

I do wish you all the very best. 

Huge thanks Annemos for sharing your experience. Yes I have come to the repair stage and stuck now. Insurer's loss adjuster suggests only cosmetic patching and decoration works required. My agent (assessor) objects to that and wants to use their team to repair the damage. My agent tell me that I will not have to pay them agent fee if I choose to use them to carry out the repair works, just pay the £1000 insurance excess. It looks like I have no other choices but just to accept one of them to carry out the repair, which worries me about the quality of work to be done. Will the insurer issue a certificate of completion and certificate of adequacy upon completion of their repair?  

Alex0857

Sandtree said:

Annemos said:

There is a Zurich case that said a Council could not be held liable if the damage was not foreseeable. As far as I can tell, that means that unless another property (or other properties) have been hit by the same trees (or nearby trees), close to you, then the Council can say your damage was not foreseable. (Your Tree Owners would be in the same position as my Council, I suppose.)

The rulings apply to all tree owners not just Councils, in fact the courts tend to hold Councils to a higher standard than the layman in term of the duty of care they owe others.

You dont need to prove that others have had their property damaged by the same trees but do need to show that the damage was forseesable.  In Khan v Kane the owners of the 10m cypress trees planted 0.5m from Khan's property were held liable because of the position and size of the trees they'd planted and maintained. You just have to consider timelines, proximity, size, species etc but ultimately the hurdle is fairly high

Thanks Sandtree. The trees owner in my case is a one of the biggest supermarkets in the country. They planted their big trees next to the neighboring residents when they expanded their building to become a 24 hour store. When I bought the house there are just grass next door. Many residents objected to their expansion so they planted these trees as insulation so that they can proceed to their store expansion. Surely they owe a duty of care to neighbours when they planted these trees for their own commercial purpose? Now expert report proved that their trees have caused subsidence to my property can a multi billion company just walk away freely after damaging an individual family mentally and financially?

Sandtree

Alex0857 said:
Surely they owe a duty of care to neighbours when they planted these trees for their own commercial purpose? Now expert report proved that their trees have caused subsidence to my property can a multi billion company just walk away freely after damaging an individual family mentally and financially?

The courts say it depends on how obvious it was to them that it would cause problems. Obviously there are millions of trees out there and the vast majority don't end up causing subsidence.

So if they planted a line of Poplar that are 3m from your building and have left them to self seed, grow as tall as they want and your in a heavy clay area etc then you have an ok case because this is a species well known for causing damage, thats very close to your building etc. If instead its mulberry, they keep their height controlled and are 25m from your buildings then your chances would be remote.

Alex0857

Sandtree said:

Alex0857 said:
Surely they owe a duty of care to neighbours when they planted these trees for their own commercial purpose? Now expert report proved that their trees have caused subsidence to my property can a multi billion company just walk away freely after damaging an individual family mentally and financially?

The courts say it depends on how obvious it was to them that it would cause problems. Obviously there are millions of trees out there and the vast majority don't end up causing subsidence.

So if they planted a line of Poplar that are 3m from your building and have left them to self seed, grow as tall as they want and your in a heavy clay area etc then you have an ok case because this is a species well known for causing damage, thats very close to your building etc. If instead its mulberry, they keep their height controlled and are 25m from your buildings then your chances would be remote.

Arboricultural Appraisal Report has identified 3 trees are materially contributing to the current subsidence damage:
Cotoneaster, 5m high, 6m crown spread, 4.5m distance to my house, younger age than property
Willow, 5m high, 5m crown spread, 5m distance to my house, younger age than property
Rose, 2m high, 16m crown spread, 2m distance to my house, younger age than property
There are no record of management by the owner, over the years residents have to cut the branches that over grown into boundary

Annemos

I believe the Willow Tree is just about the worst for speading out with its roots. The attached says they should be planted 40 meters away from property.

The thing is though, how would a homeowner even be able to pursue a case against the tree owner? He/she may not have the financial means to be able to take legal action? I think it would also require lawyers who have the specialist knowledge to mount such a case. 

I also think that one cannot normally use the legal cover on home insurance policies, because I believe they may specifically exclude anything to do with Subsidence. 

https://www.bickersinsurance.co.uk/about-us/latest-news/property-owners-news/a-list-of-trees-and-the-recommended-safe-distance-from-buildings/

Sandtree

Annemos said:

I also think that one cannot normally use the legal cover on home insurance policies, because I believe they may specifically exclude anything to do with Subsidence. 

You would ordinarily claim off your own insurance and then your insurer will recover their outlay from any third party they believe are the cause of the losses. Legal Expenses cover is normally about uninsured loss recovery (eg the excess).