Who is liable???

cathorio

An hour ago my neighbours tree fell destroying my car.
The tree in question is over thirty feet in height.
My neighbour informed me he is not liable as it's "An Act Of God".
Surly, this can't be true as he is responsible to make sure it is in a safe and stable condition.

conorh91

Private nuisance. The rule on nuisance is that nobody is liable for a nuisance unless he causes the nuisance directly, or unless he fails to prevent the circumstances (e.g. tree disease) which foreseeably led to the nuisance, or where he ought to have known that such circumstances (e.g. tree disease) existed.

Examples of cases where a person is likely to be liable when a tree on his property damages the property of his neighbour

• Where he goes out with a chainsaw, fells the tree, and pushes it directly onto another's property
• Where over the course of many weeks or months, he allows a damaged or diseased tree to fester until the inevitable happens

Examples of cases where a person is unlikely to be liable when a tree on his property damages the property of his neighbour

• Where, during a code-orange storm and unusually high winds, a freak gust knocks-down a healthy tree
• Where a tree has some disease, but the owner has not yet noticed the damage, and could not reasonably have foreseen the nuisance

Those are the basics. Seek a tree expert/ legal advice.

cathorio

Surly it is incumbent on the owner to make sure the tree is in safe condition and that it's not intruding on a neighbours property??

MarkAnthony

cathorio wrote: »

Surly it is incumbent on the owner to make sure the tree is in safe condition and that it's not intruding on a neighbours property??

Don't call him Shirley.

Not to be blunt but it's laid out very clearly above. Your insurance will be able to advise further. I'd be thankful no one was hurt. These thing happen. You're understandable pissed off, of course.

whippet

cathorio wrote: »

Surly it is incumbent on the owner to make sure the tree is in safe condition and that it's not intruding on a neighbours property??

it might be argued in your own words that it is incumbent on you not to park your car near a obviously large tree during a widely publicised high wind weather event.

cathorio

I believe I have the right to park my car on my own property!!!!
I also believe that there should be a law preventing people who live in close proximity to each other from planting trees that can grow to 50 feet or more.
The tree in question was ove thirty feet.
You may ask how I know this???
Last year the ESB measured it as it was affecting power lines. They cleared away some of the offending limbs and branches.

Yawns

cathorio wrote: »

Last year the ESB measured it as it was affecting power lines. They cleared away some of the offending limbs and branches.

They do that all around the country. You have a right to park on your property. The neighbour has a right to plant a tree as well.

Which is easier to move, a car or a tree.

During stormy winds like what we just had, I move my car away from the apartment blocks due to the slats being blown off. I do this in advance rather than wait for one of them to hit the car.

GrumpyMe

Yawns wrote: »

Which is easier to move, a car or a tree.

Up to yesterday I'd guess most would agree that the car was...
But the weather found it easier to move the tree!:o

cathorio

In reply to "Yawn"..... I can only park in my driveway as there are double yellow lines on the road outside.
I would think an issue like this should be addressed under Enviromental Law.

whippet

cathorio wrote: »

I believe I have the right to park my car on my own property!!!!
I also believe that there should be a law preventing people who live in close proximity to each other from planting trees that can grow to 50 feet or more.
The tree in question was ove thirty feet.
You may ask how I know this???
Last year the ESB measured it as it was affecting power lines. They cleared away some of the offending limbs and branches.

What you believe is irrelevant to the question at hand ... If you believe your neighbour is liable contact a solicitor and have them advise you.

cathorio

I wonder if something similar happened to you guys would you be so understanding??????��

Peregrinus

cathorio wrote: »

I believe I have the right to park my car on my own property!!!!

If your car was parked on your own property the damage is very possibly covered by your property insurance. Or it may be covered by your car insurance. Enquire from both insurers.

It's easy to moralise these things, but in fact allocation of risk questions are often answered in a very pragmatic way. It's foreseeable that from time time time natural events like landslips, trees falling, watercourses flooding, lightning strikes, etc, are going to cause damage. What is the best way for society to manage this risk? The general rule we have adopted is that if you own property, it's up to you to protect that property from, or insure it against, such natural damage. You have the greatest interest in doing so. Plus, in practical terms, you are the person who is best positioned to do so. (As pointed out above, it's easier for you to move your car than for your neighbour to stop the tree falling in high wind. Yes, you have a right to park your car on your own property, but there is no law which says that if you exercise your rights and suffer loss as a result someone else has to compensate you for it.)

Atlantic Dawn

I would have thought myself tree owner would be responsible, seems in a storm they would not be...
www.irishexaminer.com/farming/general/fallen-trees-the-responsibility-of-landowners-in-most-cases-267139.html

whippet

cathorio wrote: »

I wonder if something similar happened to you guys would you be so understanding??????��

I'd be pissed off alright .. I'd probably looking in to the possibility of claiming from my neighbour but would accept the reality

cathorio

My argument is that in estates where people live in close proximity there should be an Environmental Law preventing people from planting trees that grow to astronomical heights. Surly under Health & Safety Law this should be a consideration?

RossieMan

op, you've gotten your answer here from a few people. contact a solicitor if you want, stop throwing your toys out of the pram because its not the answer you want.

Jawgap

cathorio wrote: »

My argument is that in estates where people live in close proximity there should be an Environmental Law preventing people from planting trees that grow to astronomical heights. Surly under Health & Safety Law this should be a consideration?

Health and Safety Law applies only in the workplace.

You are entitled to the quiet enjoyment of your property - if you can't plant a tree what next?

No thorny bushes in case someone gets snagged on them? No garden furniture or trampolines in case the wind lifts them and they cause damage elsewhere?

One point - it's a very long shot - but given the ESB trimmed the tree, there may be a cause of action against them if they somehow made matters worse.

Otherwise it's your car insurance you have to claim off.

A few years ago my car was damaged by tiles coming off a neighbour's roof - his house insurance covered it, but maybe it would be better if houses didn't have roofs

Peregrinus

cathorio wrote: »

My argument is that in estates where people live in close proximity there should be an Environmental Law preventing people from planting trees that grow to astronomical heights. Surly under Health & Safety Law this should be a consideration?

There's an awful lot of estates where the trees are older than the houses, and it would make for confusion and uncertainty to have a liability rule which depended on when the tree was planted, and whether it was there (a) before your house was built, (b) before you bought your house - after all, if you bought a property with a driveway overshadowed by a 10m tree, haven't you chosen to run a risk? - or (c) before you parked the car within 10m of the tree (same argument).

Or, applying your thinking, you could equally argue for a planning code which forbids driveways and parking areas within "falling distance" of trees.

The bottom line is that there are a number of different rules that we could adopt to allocate the risks associated with falling trees, but the only rule that matters in the present circumstances is the one that we have actually adopted. And, basically, that rule is that unless you can show some negligence or misfeasance on the part of the owner of the land on which the tree is growing, I'm afraid you're cactus. This is what you have insurance for.

The fact is that while falling trees are a hazard to cars, they are a sufficiently infrequent hazard that we haven't found it necessary either to require the cutting down of trees that are near to driveways, or the banning of parking near trees. Tree-falling-on-car is a class of damage which it costs less to deal with when it occurs than it does to prevent it occurring in the first place. And our chosen method for dealing with it is to have property owners insure their property, which is basically what we do with fire risk as well. You can sue an arsonist who sets fire to your property, but if an accidental fire spreads from your neighbour's property to your own, insurance is your only friend.

Have you been on to your insurers?

aaakev

cathorio wrote: »

An hour ago my neighbours tree fell destroying my car.
The tree in question is over thirty feet in height.
My neighbour informed me he is not liable as it's "An Act Of God".
Surly, this can't be true as he is responsible to make sure it is in a safe and stable condition.

Ah come on show us the pictures!

monkeynuz

cathorio wrote: »

My argument is that in estates where people live in close proximity there should be an Environmental Law preventing people from planting trees that grow to astronomical heights. Surly under Health & Safety Law this should be a consideration?

I think your definition of astronomical needs a bit of tweaking, a 30+ foot tree is not astronomical. I understand you're annoyed but it's just an unfortunate incident.

Yawns

cathorio wrote: »

I wonder if something similar happened to you guys would you be so understanding??????��

Something similar did happen to my car about 2 years ago. I accepted it, moved on and repaired the damage at my own cost. That's life. It sucks, but we all have to deal with **** situations from time to time.

Yawns

GrumpyMe wrote: »

Up to yesterday I'd guess most would agree that the car was...
But the weather found it easier to move the tree!:o

Touché!

NUTLEY BOY

In plain terms, your neighbour is not liable if the tree is free of defect.

MarkAnthony

cathorio wrote: »

I wonder if something similar happened to you guys would you be so understanding??????��

Sorry to be blunt but this is Legal Discussions not Personal Issues. A certain amount of dispassion (and wise-arses) is to be expected.

rozeboosje

This is precisely why I am trying to discover who owns a piece of land adjacent to my property (see the thread I posted earlier). So I can make the owner aware of the issue and remind him or her of their responsibilities before anything happens. And hopefully get them to at least contribute a goodwill sum to having the trees adjacent to my property made safe.

rameire

is the tree still the property of the land owner,
if so do they bear the cost of removing this tree from the car.
or could the car owner claim property and thus remove the tree and sell it as fire wood, thus recouping some cost for the damage to the car.

Peregrinus

rameire wrote: »

is the tree still the property of the land owner,
if so do they bear the cost of removing this tree from the car.
or could the car owner claim property and thus remove the tree and sell it as fire wood, thus recouping some cost for the damage to the car.

The person on whose property the tree has fallen can remove and keep or dispose of the tree.

In fact, though, it's likely that the fallen tree straddles the boundary. The two landowners are going to need to co-operate to deal with the fallen tree.

monkeynuz

So op, what did you decide to do in the end?

pedroeibar1

The photo of he end result is here

conorh91

Peregrinus wrote: »

The person on whose property the tree has fallen can remove and keep or dispose of the tree.

I wouldn't be so sure about keeping the tree; the neighbour has not necessarily done anything wrong. The tree remains the property of the man whose garden it blew in from, just like a trampoline or a bundle of fifty-euro notes, or any other object that might take-off in a gale.

Of course, if the neighbour refuses to remove the tree, the person onto whose land it has fallen may in that situation, have a cause of action against his neighbour, and may self-help and/or pursue his neighbour.

runawaybishop

Peregrinus wrote: »

The person on whose property the tree has fallen can remove and keep or dispose of the tree.

In fact, though, it's likely that the fallen tree straddles the boundary. The two landowners are going to need to co-operate to deal with the fallen tree.

runawaybishop wrote: »

Request for legal advice deleted.

Mod:

Please read the forum charter. Please do not ask for legal advice.

Peregrinus

runawaybishop wrote: »

Request for legal advice deleted

No, I'm not 100% sure. I was under the impression that, e.g. windfall fruit from your neighbour's tree that lands in your garden is yours, and I was reasoning that a windfallen tree is no different from windfallen fruit. But now that I look for authority for the proposition that windfall of any kind belongs to the owner of the land on which it falls, I can't find it. So best to take counsel's opinion before you fire up the chainsaw.

runawaybishop

runawaybishop wrote: »

Mod:

Please read the forum charter. Please do not ask for legal advice.

Whoops, sorry.

MarkAnthony

Peregrinus wrote: »

No, I'm not 100% sure. I was under the impression that, e.g. windfall fruit from your neighbour's tree that lands in your garden is yours, and I was reasoning that a windfallen tree is no different from windfallen fruit. But now that I look for authority for the proposition that windfall of any kind belongs to the owner of the land on which it falls, I can't find it. So best to take counsel's opinion before you fire up the chainsaw.

I'd rather have some lemons fall on my car tbh :pac:

Little CuChulainn

cathorio wrote: »

My argument is that in estates where people live in close proximity there should be an Environmental Law preventing people from planting trees that grow to astronomical heights. Surly under Health & Safety Law this should be a consideration?

Did that neighbor plant the tree? I would think it would take a while for a tree to reach over 30 foot. There's actually a law preventing you from removing a tree if it's over a certain age.

pedroeibar1

Little CuChulainn wrote: »

There's actually a law preventing you from removing a tree if it's over a certain age.

Yes, and another that allows you cut it down if it is within 100ft of a dwelling.
Section 37 of the Forestry Act, 1946.

monkeynuz

pedroeibar1 wrote: »

Yes, and another that allows you cut it down if it is within 100ft of a dwelling.
Section 37 of the Forestry Act, 1946.

Bugger, beat me to it lol.

Little CuChulainn

pedroeibar1 wrote: »

Yes, and another that allows you cut it down if it is within 100ft of a dwelling.
Section 37 of the Forestry Act, 1946.

Not another, it's the same law.