Property Focus | Of trees, adverse possession and lease interpretation

A judgment that is a road map to certain types of claim is very useful. Ramsey J's judgment in Khan & Khan v Kane [2013] EWHC 2687 is just that for tree root subsidence claims.

The Khans purchased their property in 2000. They were advised to insure against subsidence given the proximity of various trees and shrubs in Mrs Kane's adjoining property. Cracks appeared in 2006. Three years of loss adjusters, monitoring, structural reports and remedial works followed. A Cypress Tree hedge was the initial focus of attention. Subsequent further damage resulted in the felling of two oak trees.

The Khans brought proceedings in nuisance and negligence for damage caused by the Cypress hedge and one oak trees. Although, the fact of subsidence and a causal link to the hedge and tree was admitted the existence of a duty, breach, contributory negligence, failure to mitigate and quantum were live issues at trial.

The central importance of foreseeability is highlighted. Exactly what must be established to satisfy that requirement is detailed. The question "was the risk of damage to the Khans' property foreseeable" encapsulates myriad specific points. The nature, subject matter and degree of risk are all relevant along with how perceptible it was.

Likelihood and consequences

What is meant by risk? It must be a real risk. The foreseeability of the risk is a pre-requisite to the law imposing a duty to act. So there must be sufficient risk of damage to put a reasonable landowner on notice that preventative action should be taken. The likelihood and consequences of the risk can be key features of that assessment.

Then, the risk must be the specific risk that has matured into the claim. The general risk that trees close to a property may cause damage is not sufficient. Even the risk that any of the defendant's trees could have that effect will not do. What is required is knowledge of the risk that the specific tree may cause the type of damage it did cause. The fact that a tree might cause damage by falling rather than its roots causing subsidence is not enough. Nor is knowledge that another tree might cause subsidence sufficient.

Notice is not a pre-requisite to these types of claim but is potentially relevant in two ways. Notice resulting in actual knowledge removes the need to establish foreseeability from that time. Second, a claimant should give the defendant notice of any proposed remedial works enabling steps to abate or potentially loose some or '¨all remedies.

Notice aside, evidence of actual knowledge will be rare unless chats or rows over the garden fence include an unguarded disclosure.

For the defendant prompt action when the real risk or the fact of some damage is known can pave the way to escaping all liability by ensuring any damage predates foreseeability or notice.

Obvious risk

In most cases imputed knowledge is relied upon for the period prior to damage. Evidence of the general population's appreciation of a risk, media coverage of particular risks, the actual information and advice routinely given on the topic may provide helpful background but is not enough. Ultimately it will be necessary to focus on the particular tree.

Would the reasonable landowner, having regard to the proximity, type, size and condition of '¨that tree be put on notice of the risk that it '¨would cause subsidence?

Expert evidence can be used to recreate the picture that faced the defendant. However, ultimately the case will depend on a judge's assessment of how obvious the particular risk was. The inherent uncertainty is vividly demonstrated by the Khans' case; the answer was "yes" for the oak tree but "no" for the Cypress hedge.

Since the existence of the duty depends on foreseeability of risk it is unsurprising that breach is related to the degree and significance of the particular risk. The important question is did the defendant act reasonably to prevent the damage? The answer is influenced by the magnitude of the perceptible real risk and the ease, disadvantages and cost associated with prevention or remedy. The role of TPOs in these cases was also addressed in Khan. The TPO-related history of any particular case will be relevant. However the entitlement to interfere with a tree under section 198(6)(b) of the Town and Country Planning Act 1990 will prevent most defendants using a TPO to avoid a finding that their inactivity was a breach of duty.

It should be noted that in Khans' case the court put a premium on neighbourliness. The Khans' damages were reduced by 15 per cent for contributory negligence. The contributory negligence was their failure to communicate to Mrs Kane the risk her oak tree would cause damage when they became aware of that.

Double registration

Parshall v Hackney [2013] EWCA Civ 240 reveals that in cases of double registration having paper title can disadvantage you. The owners whose title was registered second were in exclusive occupation for more than 20 years. However, the fact they were registered owners during their occupation prevented them being in "adverse" possession or time running against the other registered owner. The Court of Appeal established that counter-intuitive outcome previously rejected by the Adjudicator and Chancery Division. So where double registration occurs the rectification regime under the Land Registration Act 2002 along with the land registry indemnities provide the only potential solutions.

The proper approach to the construction of leases and notices received a lot of court attention over the summer. Overall, the process of construing leases and notices involves the same legal test and guidance (canons of construction) as for any contractual material.

As a whole

In Blackpool BC & Blackpool Coastal Housing Ltd v Cargill [2013] UKUT 0377 the need to read a lease as a whole and to give effect to every part of the lease, if possible, were highlighted. The result was that a provision within a lessee's covenant deeming costs incurred by the freeholder to be properly incurred was construed as extending the scope of the costs recoverable as service charges. The Upper Tribunal decision is also noteworthy for its confirmation that "a proportionate amount" may be determined by reference simply to the number of units rather than pro rata as to size where that exercise would be imprecise, involve significant work and itself increase costs.

In Seimens Hearing Instruments Limited v Friends Life Limited [2013] WL 345042 Nicholas Strauss QC provides a detailed analysis of the correction of mistakes and the effect on validity of errors in notices. He also discusses the proper approach to construing a document. He highlights that mistakes obvious on the face of the notice itself can be corrected under Mannai. He also makes it clear where a required feature was a nonsense or inaccurate (here reference to the wrong statutory provision) does not change the fact the notice fails to comply with the requirements of the lease. He confirms the effect of non-compliance on validity it is a matter of construction. Is the requirement a pre-requisite to validity or not? Adopting the usual approach to construction, results that are non-sensible and/or uncommercial will not prevail where there is ambiguity in another construction. The inclusion of a specific consequence and/or the fact that the requirement would provide the recipient with necessary omitted information are identified as two strong indicators of non-compliance which results in invalidity. SJ