A tree in my father's neighbour's property fell and caused damage. Advice needed.

Hi, everyone.

During a storm last year, our neighbour's huge tree fell into my father's garden causing around 10,000 euros worth of damage to a fountain, a gate, a wall and some other stuff.

Because the tree wasn't rotten, the neighbour's insurance won't pay. And my father unfortunately didn't have these things covered under his home insurance.

My father had previously voiced his concerns about the tree and I am shocked that such damage could be done with zero repercussions. He is retired and will have to replace all of this stuff with the cheapest possible options compared to the high quality stuff that was there before.


My question is: Is this a case where life is unfair and you just deal with it, or can my father sue for damages, even after the insurance company said "no"? I am really disappointed for him. 40 years of gardening work ruined along with being out of pocket. If it had fallen on a car and caused 40k of damage, would it be the same?

Thanks.

Mooooo

His neighbour should pay, if his insurance didn't cover it which is strange, storm damage should cover it, neighbour has to. It's the neighbours responsibility whether he had insurance to cover it or not I would think as it's on his land

el_gaucho

http://treecouncil.ie/tree-advice/trees-law/

Scroll to the part about neighbour's trees.

Sleeper12

I don't think he can sue the neighbours insurance. He could sue his neighbour but he has to live beside him so not another option for some people. It's up to the neighbour to sue his insurance company AFAIK
Is there any chance that the neighbour can pay something towards it?

jamesthepeach

We had a tree fall on our property knocking down the wall and an oil tank, which was almost empty thanks God.

The procedure was that we claimed off our house insurance, and they then went and settled with the neighbors insurance.

Our no claims wasn't effected at all.

Mantis Toboggan

When it happens during a storm it's called an act of God and insurance companies almost always pay out. Same thing happened us.

Also a fell on my car during a storm, while the insurance company did pay out, I lost my no claims bonus and my insurance went through the roof the following year.

Sleeper12

Mooooo wrote:

His neighbour should pay, if his insurance didn't cover it which is strange, storm damage should cover it, neighbour has to. It's the neighbours responsibility whether he had insurance to cover it or not I would think as it's on his land

If the tree isn't rotten I could see an act of God being the defence

el_gaucho

el_gaucho wrote: »

http://treecouncil.ie/tree-advice/trees-law/

Scroll to the part about neighbour's trees.

It says "The owner of a tree which is a danger to the occupiers of adjoining land, or to people lawfully using a public way, is liable for any damage that it causes providing that negligence is proved against the owner. Owners should inspect their trees regularly, calling in professionals if necessary."


Does that mean that any civil case will fall back on that, meaning my father is out of luck if the tree wasn't rotten? It seems incredible to me that you can have a massive tree within falling distance of three other homes and you'll never be liable for it as long as it's healthy.


Is there anything other than the trees health that could constitute negligence? The thing fell across a road and would have killed someone driving under it.

Sleeper12

Sleeper12 wrote: »

I don't think he can sue the neighbours insurance. He could sue his neighbour but he has to live beside him so not another option for some people. It's up to the neighbour to sue his insurance company AFAIK
Is there any chance that the neighbour can pay something towards it?

They're on amiable terms but my father would prefer his things fixed properly I'd imagine. The neighbour might pay a bit and they'll talk soon. I want to know where my father stands before then.

Tyson Fury wrote: »

When it happens during a storm it's called an act of God and insurance companies almost always pay out. Same thing happened us.

Also a fell on my car during a storm, while the insurance company did pay out, I lost my no claims bonus and my insurance went through the roof the following year.

I thought it was the other way around.

jamesthepeach

[Deleted User] wrote: »

It says "The owner of a tree which is a danger to the occupiers of adjoining land, or to people lawfully using a public way, is liable for any damage that it causes providing that negligence is proved against the owner. Owners should inspect their trees regularly, calling in professionals if necessary."


Does that mean that any civil case will fall back on that, meaning my father is out of luck if the tree wasn't rotten? It seems incredible to me that you can have a massive tree within falling distance of three other homes and you'll never be liable for it as long as it's healthy.


Is there anything other than the trees health that could constitute negligence? The thing fell across a road and would have killed someone driving under it.

If your father goes to his own insurance company they will take care of any dealings with the neighbors.

el_gaucho

[Deleted User] wrote: »

It says "The owner of a tree which is a danger to the occupiers of adjoining land, or to people lawfully using a public way, is liable for any damage that it causes providing that negligence is proved against the owner. Owners should inspect their trees regularly, calling in professionals if necessary."


Does that mean that any civil case will fall back on that, meaning my father is out of luck if the tree wasn't rotten? It seems incredible to me that you can have a massive tree within falling distance of three other homes and you'll never be liable for it as long as it's healthy.


Is there anything other than the trees health that could constitute negligence? The thing fell across a road and would have killed someone driving under it.

I don't think it means the tree has to be rotten. I would imagine they could be deemed negligent for allowing the tree to grow out of control and not pruning it for example. You did say your father had raised concerns about it previously.

jamesthepeach

jamesthepeach wrote: »

If your father goes to his own insurance company they will take care of any dealings with the neighbors.

They won't deal with it because it was only the house itself that was insured.


I guess what I'm really asking here is whether or not this is something you can sue over given that neither insurance company will pay out.

jamesthepeach

[Deleted User] wrote: »

They won't deal with it because it was only the house itself that was insured.


I guess what I'm really asking here is whether or not this is something you can sue over given that neither insurance company will pay out.

That seems like weird insurance to me.
Never heard of your home insurance not covering the garden. I'd get your dad to read his policy documents again.

dexter_morgan

Deleted User wrote: »

Because the tree wasn't rotten, the neighbour's insurance won't pay. And my father unfortunately didn't have these things covered under his home insurance.

That doesnt sound right! Can you be sure that the neighbour even contacted the insurance company? Maybe he doesnt have insurance. Maybe he does but doesnt want his premium increasing because of a claim. I would ask him for the name of his insurance company and contact them directly.

el_gaucho

el_gaucho wrote: »

I don't think it means the tree has to be rotten. I would imagine they could be deemed negligent for allowing the tree to grow out of control and not pruning it for example. You did say your father had raised concerns about it previously.

Another neighbour within falling distance complained before as well.

I haven't been at the house in years so I don't know what it looked like but if the neighbours are complaining and wanting it cut down, could it be negligent that it wasn't checked to be 100% safe.

Should he have a record of having it checked professionally in response to two neighbour's concerns?

dexter_morgan

dexter_morgan wrote: »

That doesnt sound right! Can you be sure that the neighbour even contacted the insurance company? Maybe he doesnt have insurance. Maybe he does but doesnt want his premium increasing because of a claim. I would ask him for the name of his insurance company and contact them directly.

It'd be business insurance. The tree was in a corner of a land that has a business. (not going to specify for privacy sake)

Good thinking though.. Since insurance for that would be so much more, perhaps he's afraid of premiums and being forced to remove all other trees etc.

jamesthepeach

[Deleted User] wrote: »

Another neighbour within falling distance complained before as well.

I haven't been at the house in years so I don't know what it looked like but if the neighbours are complaining and wanting it cut down, could it be negligent that it wasn't checked to be 100% safe.

Should he have a record of having it checked professionally in response to two neighbour's concerns?

No. Neighbours always complain about trees. Whether they are good trees or bad trees. It means nothing unless they have evidence that they present with the complaint.
Your dad needs to go.tonhis own insurance company and then they will take over. Nothing else for him to worry about after that.

nuac

Mod
Leaving open for general discussion, but pls observe rule on legal advice
nuac

ganmo

The business will(should) have a public liability policy<modsnip - please do not discuss liability here> yet as you have to prove that the business was negligent in not dealing with the tree.

House insurance doesn't just cover the four walls of the house so that route should be looked at again

Peregrinus

Deleted User wrote: »

My question is: Is this a case where life is unfair and you just deal with it, or can my father sue for damages, even after the insurance company said "no"?

Neither. This is a case where you insure.

Storms happen, and they cause loss. Who should bear that loss?

The general answer we as a society have come to is; the risk of loss falls in the first instance on the person whose property is damaged. If they don't want to carry that risk they effect insurance to cover it.

The answer changes if the loss is caused not just by the storm, but also by someone else's want of care (or worse). If I put up an unsafe structure, for example, and it blows down in a storm and lands on your car, you can sue me not because I owned the structure but because I was responsible for it being unsafe.

But in this case, from what you say, the tree was sound, so the landowner on whose land it stood doesn't seem to be have been responsible for the fact that it blew down. That's the view his insurer has taken, and nothing in your post suggest that they were wrong.

Your father can sue the neighbouring landowner, but on the facts as stated he's not likely to win, and he'll end up bearing his own costs of the action, plus those of his neighbour. Plus, he'll have a very pissed-off neighbour.

I'm with jamesthepeach and ganmo. The only surprising thing in this story is that your father's insurer has declined to pay out; I'd expect this kind of loss to be covered by a standard home insurance policy. This might be worth looking at again.

wordofwarning

OP did you call the a loss assessor? They work on benefit of you. They will come out, tell you if you have a claim and will maximise the claim as an insurer will use a loss adjustor to try and minimise the claim. Or in some cases a loss adjustors will tell you that you don't have a claim.

I heard of a case where someone had a timber frame house and everything in the house was destroyed. The insurance company claimed there was no proof of them having a TV etc looking at the ashes. So a loss assessor went out with a spade and built their case for them ie finding the the TV etc in the ashes.

I would call a loss assessor and ask for their opinion. They generally take around 10% of your claim, but they generally make up for it in their expertise.

NUTLEY BOY

Just a few observations on general principles - not legal advice.

Generally, fault has to be established in negligence or nuisance. As already pointed out this could be the case if the tree was rotten or unsuitable for it's location or poorly maintained.

Act of God (Vis Major) applies where an accident could not have been avoided by any amount of pains and foresight and care. It is almost like the concept of inevitable accident. In practice, vis major is not usually pleaded but rather liability is denied in a full defence.

The relationship between negligence and vis major is sometimes confusing. If the tree was defective and a gale came along to push it over the defect will be the negligent deed and liability will attach and the vis major argument is irrelevant. Conversely, if there is no defect and a vis major event pushes the tree over there is a good defence of vis major or a simple denial of liability. It is all about proximate cause.

Proximate cause is the active and efficient event that puts in motion a train of events that brings about a particular result. Rotten tree + gale = liability as the defect was first in the train of events.

OP's father needs to scrutinise the wording of his insurance contract. Buried somewhere in the hieroglyphics he needs to extract the following ;

i) The definition of the insured property and
ii) The list of perils against which the insured property is covered.

I have dealt with a number of these contracts over the years and would be surprised that if walls and gates did not fall within the definition of the insured property and probably under the buildings section at that. However, damage to certain property by storm is not covered - I think fences and possibly gates but check the contract wording.

If the policy includes accidental damage cover ask the insurers if any storm damage exclusion would apply to a claim for fences and gates where they are being presented as an accidental damage claim. I would not be too hopeful but it is worth exploring.

In relation to the fountain see if there is any interpretation of the policy definition of buildings that might bring that item within it's scope - possibly as a permanent fixture.

Finally, it seems from OP to be taken as granted that the tree was free of defect according to the neighbour's insurers. Does OP's father have any objective and independent evidence to verify this as I certainly would not be relying on the neighbour's insurers to be telling the truth. Did the neighbour's insurers commission an expert report upon which to base their argument ? Ask them for a copy of it even on a without prejudice basis even if only to see if it is all that it is being cracked up to be !

All of my thoughts about what actually happened with all the dealings appear to be as suspect as I thought. He finally went to a solicitor after what I told him from here and also, the neighbour was extremely rude to him the last time they met.

He said the solicitor (old family friend) was shocked with how everything was handled, to the point where it appears there could have been some under-the-table dealings in relation to advice my father was given.

It has been incredibly frustrating trying to explain that absolutely no one has been on his side all along. He seemed to think the assessor for my neighbour's insurance company would give an impartial and fair judgement etc. etc. And up until he talked to the solicitor, he even seemed to think his own insurance would never just say 'no' at the start. Then the worst part is he hadn't even read his policy through all of this. He just took them on their word.

It will be interesting to see how it pans out from here on. Personally, I want him to pay up his fair share and also have every other tree professionally checked, and felled if necessary, in response to this incident and the other neighbour's concerns. I'd also appreciate it if my neighbour could kindly go to hell for being a Mod deletion to an old single retired man.

NUTLEY BOY

Deleted User wrote: »

All of my thoughts about what actually happened with all the dealings appear to be as suspect as I thought. He finally went to a solicitor after what I told him from here and also, the neighbour was extremely rude to him the last time they met.

He said the solicitor (old family friend) was shocked with how everything was handled, to the point where it appears there could have been some under-the-table dealings in relation to advice my father was given.

It has been incredibly frustrating trying to explain that absolutely no one has been on his side all along. He seemed to think the assessor for my neighbour's insurance company would give an impartial and fair judgement etc. etc. And up until he talked to the solicitor, he even seemed to think his own insurance would never just say 'no' at the start. Then the worst part is he hadn't even read his policy through all of this. He just took them on their word.

It will be interesting to see how it pans out from here on. Personally, I want him to pay up his fair share and also have every other tree professionally checked, and felled if necessary, in response to this incident and the other neighbour's concerns. I'd also appreciate it if my neighbour could kindly go to hell for being a Mod deletion to an old single retired man.

I can identify with these views.

The assessor for your neighbour's insurers would not be impartial as far your father is concerned. That adjuster, whilst acting "independently", is actually acting for and on behalf of the neighbour's insurers and would not be protecting your father's interests.

The evidence at the heart of this would be the state of the tree at the time that it fell. If that evidence has been disposed of that makes for difficult proof especially if it's disposal was done quickly and slickly.

evolving_doors

I was just wondering about other factors. It seems to be hanging on the condition of the tree as 'not being rotten'. But would it not be important to take the age and height of the tree into account?
All around the country the county councils undertake regular prunings/fellings on trees next to roads. Maybe it's just in the public interest and they are immune from any liabilities if trees fall on the road (I dont know). But the councils sure as heck dont look at every tree and say 'nope, no rot here.. move on', they'd have to look at the overall height/body and age of the tree.

Every tree falls at some stage. Perhaps if your father had photos of it's height compared to surrounding trees, or length of where it landed in his garden.

Also maybe have a look around the tree.. is it beside a river or any construction (long shot!).

Maybe look at how to prepare if another tree on the neighbour's property falls.

I know it's a random website from another country but this one has a few good tips on what to do the next time if you suspect a tree is hovering ominously over your property. (Give written warning with photos etc). https://www.houselogic.com/finances-taxes/home-insurance/tree-fall-property-line/

Maybe the fact that your dad has another witness to say that ye voiced concerns could mean something! But it seems from that website (and other posters here) that it should be left in the hands on the insurance companies... if not then it'll probably mean going legal.

That's my unqualified take on it.

NUTLEY BOY

Gebgbegb wrote: »

I was just wondering about other factors. It seems to be hanging on the condition of the tree as 'not being rotten'. But would it not be important to take the age and height of the tree into account?
All around the country the county councils undertake regular prunings/fellings on trees next to roads. Maybe it's just in the public interest and they are immune from any liabilities if trees fall on the road (I dont know). But the councils sure as heck dont look at every tree and say 'nope, no rot here.. move on', they'd have to look at the overall height/body and age of the tree.

Every tree falls at some stage. Perhaps if your father had photos of it's height compared to surrounding trees, or length of where it landed in his garden.

Also maybe have a look around the tree.. is it beside a river or any construction (long shot!).

Maybe look at how to prepare if another tree on the neighbour's property falls.

I know it's a random website from another country but this one has a few good tips on what to do the next time if you suspect a tree is hovering ominously over your property. (Give written warning with photos etc). https://www.houselogic.com/finances-taxes/home-insurance/tree-fall-property-line/

Maybe the fact that your dad has another witness to say that ye voiced concerns could mean something! But it seems from that website (and other posters here) that it should be left in the hands on the insurance companies... if not then it'll probably mean going legal.

That's my unqualified take on it.

That is a fair view of the issue.

The focus on rot is because that is the usual culprit and it's presence can, on the evidence, create an evidentiary presumption of a lack of maintenance i.e. if properly maintained rot would have been discerned and the problem fixed.

However, the scope of potential liability can extend beyond the issue of rot. However, remember that fault has to be proven.

I'll update when there's more to tell. Even if nothing is paid out, I'll be glad it was taken care of properly instead of what had happened.

ct5amr2ig1nfhp

Just out of interest. What was your insurance premium cost before and after the claim? I've no idea how much they load premiums after a claim.

Tyson Fury wrote: »

When it happens during a storm it's called an act of God and insurance companies almost always pay out. Same thing happened us.

Also a fell on my car during a storm, while the insurance company did pay out, I lost my no claims bonus and my insurance went through the roof the following year.

fryup

on the topic of trees, i've got a tall tree at the bottom of my garden, its about 5 yards away from a road....if god forbid it falls tomorrow (Opehlia) on the road.. am i liable?

if it causes an obstruction am i liable > will the council bill me??

Discodog

A professional will be able to determine why the tree fell & whether there would of been evidence of this. The classic case isn't rot but root damage or where the tree simply gets too big for it's roots. The typical signs can be where the ground heaves around the tree during high winds.

brian_t

If the tree has/had its full canopy of leaves this year, has no sign of rot and looks generally healthy then there is no reason to cut it down.

Discodog wrote: »

The classic case isn't rot but root damage or where the tree simply gets too big for it's roots. The typical signs can be where the ground heaves around the tree during high winds.

The average householder wouldn't be expected to know this about a tree and couldn't be held responsible for such a tree falling (assuming what I wrote above).

fryup

brian_t wrote: »

If the tree has/had its full canopy of leaves this year, has no sign of rot and looks generally healthy then there is no reason to cut it down.

but if its very tall and close to a public road...is there an argument that the landowner should have foresaw a possible risk??

brian_t wrote: »

The average householder wouldn't be expected to know this about a tree and couldn't be held responsible for such a tree falling (assuming what I wrote above).

can i quote you on that? ( i'm really nervous tonight as i type this )

brian_t

fryup wrote: »

but if its very tall and close to a public road...is there an argument that the landowner should have foresaw a possible risk??

No, not if it is healthy. Almost every non-motorway road in Ireland has tall trees close to them at some point.

I believe such a road even featured in a popular TV series.

fryup

^^^^^^^^

and what about cleaning up the mess...could the landowner be billed by the council?

Del2005

fryup wrote: »

^^^^^^^^

and what about cleaning up the mess...could the landowner be billed by the council?

The landowner would be liable for any damage if the trees were proven to be unsafe before they fell. Lots of farmers have to pay to get potentially unsafe trees cut down, after applying to the council for permission to cut down the dangerous trees.

brian_t

Del2005 wrote: »

Lots of farmers have to pay to get potentially unsafe trees cut down, after applying to the council for permission to cut down the dangerous trees.

Most farmers cut down the trees themselves for firewood or sell them to a local fuel merchant.

You don't need the councils permission to cut down a dangerous tree.

Here are some common scenarios where trees can be felled without the need to submit a tree felling licence application under Section 19 of the Forestry Act, 2014:

• Trees outside a forest – within 10 metres of a public road and which, in the opinion of the owner (being an opinion formed on reasonable grounds), is dangerous to persons using the public road on account of its age or condition.

https://www.teagasc.ie/crops/forestry/advice/timber-harvesting/felling-of-trees---legal-requirements/