A homeowner will be liable for tree root damage to another property whether or not they were aware of the risk of damage according to a court ruling.

The decision could have wide-ranging professional liability implications for property surveyors if they fail to identify the risk of tree root damage, believes Brunel.

Mrs Kane owned a house in Stanmore, Middlesex.  Tree roots from her Lawson Cyprus hedge and an oak tree caused subsidence damage to her neighbours, Mr and Mrs Kahn’s, house.  Mrs Kane denied liability for the damage claiming she was unaware of the risks to the Kahn’s property and that she acted quickly to fell the trees as soon as she knew about the problem.

The law says that a homeowner is liable for damage caused by their tree roots providing the damage was ‘reasonably foreseeable’.  The Court therefore had to decide what was the correct test for ‘reasonable foreseeability’ of root damage.  In awarding damages to Mr and Mrs Kahn, the court said that while Mrs Kane had no actual knowledge of the risk from her tree roots, liability has to be based on the knowledge that should be expected of a reasonably prudent homeowner.  It took into account widespread media coverage of the risk of tree-related subsidence on clay soils and the height, poor condition and location of the Cypress hedge.  It decided Mrs Kane should have appreciated that there was a risk to the Kahn’s house.

The court also drew attention to the fact that a higher standard of ‘reasonable foreseeability’ would be expected where a homeowner should be particularly aware of the risk – for example if they were a surveyor or engineer.

“This case focused on whether a homeowner should be aware of the risk of tree root damage to a neighbour’s property,” said James Burgoyne, Director Brunel Professional Risks.  “Many homebuyers have surveys of their new properties, so surveyors could be found to be negligent if they do not highlight tree damage risk in their reports and there is a subsequent claim.  Having good risk management procedures in place can help surveyors eliminate the risk of omitting important facts from their reports.”

Further details of Khan v Kane have been reported by the Property Litigation Association and Barristers’ Chambers, 2TG.  Daniel Crowley of 2 Temple Gardens acted for the claimants.