Can I cut and give my neighbour’s branches back to him?

Property clinic: Overhanging foliage can cause unneighbourly friction

Photograph: iStock

Photograph: iStock

 

Q. If I remove overhanging branches from my neighbour’s trees that are in line with my boundary wall, and I offer to return them to him and he refuses to take them, can I then deposit these branches in his garden as they are his property?

If he then deposits them back in my garden is he trespassing and in breach of the law?

A. Putting branches in your neighbour’s property, even if they are from his trees, is a trespass in itself. Even touching your neighbour’s garden without good reason is technically a trespass.

Boundaries are always problematic. Traditionally at common law, each owner has the right to fence in his land. You are not bound to fence your land but you are bound in law to fence it to prevent animals escaping and trespassing on adjoining lands.

Sometimes, but not often, the title to adjoining properties may have agreements in the deeds for the maintenance of shared boundaries. It may be worthwhile to inspect your title first to ascertain if this is the case. If you have been granted a mortgage over the property, this can be done by arrangement with your lender.

I am not sure precisely what you mean when you say the trees are your neighbour’s and at the same time are in line with “your” boundary wall. I think Chapter 3 Land Reform and Conveyancing Act 2009, which has brought in some significant changes regarding boundary matters, may be relevant to your situation.

The Act defines a “party structure” as “any hedge, partition, shrub, tree, wall or other structure which horizontally, vertically or in any other way (a) divides adjoining and separately owned buildings, or (b) is situated at or on or so close to the boundary line between adjoining and separately owned buildings or between such buildings and unbuilt-on lands that it is impossible or not reasonably practical to carry out works to the structure without access to the adjoining building or unbuilt-on land.”

The chapter goes on to deal with the entitlements of the owner with regard to the carrying out of any works in relation to the party structure and the division of costs between the neighbours. There is also provision for an application to be made to court for a works order permitting the carrying on of works and the court has power to seek security for damages, costs and expenses for the adjoining owner. It may be the case that the trees form part of the party structure as defined in the 2009 Act.

A prudent way to proceed would be to approach your neighbour and agree how to deal with the issue before cranking up the chainsaw. Resorting straight away to legal process will not do anything to encourage good neighbourly relations.

Paul Stack is a solicitor at P & G Stack Solicitors

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