Property problems: Neighbour's tree at root of easement dispute

Q: My company owns rental properties, one of which has its drains running under the neighbouring section. Our tenant has complained that the roots of her neighbour's mature tree are damaging her drains. We have contacted the neighbour, who refuses to do anything about the tree. He also says it is up to us to repair the drain and because it is broken we are liable for the leak on to his property. Is he right? Rights enjoyed by the owner of one property over, or in respect of, another property, such as the right to discharge water or sewage into drains laid across a neighbouring section, are often recorded in an "easement". Ordinarily, it is for the person enjoying the easement to carry out repairs or to spend money necessary to maintain the easement. The owner of land may be liable in damages if he interferes with it.

A: You first need to check the titles of the two properties. An easement such as the right of drainage is legally created when it is registered on the title. The terms will define its scope and any rights or liabilities of your company and its neighbour.

Next, you need to check the date on which the easement was registered against the neighbouring title. The Land Transfer Act 1952 implies standard terms into easements, although the terms implied are subject to and may be varied by the terms actually registered. Changes to the act mean the precise wording of the terms implied varies according to the date on which the easement was registered. Generally speaking, all easements registered since 1961 include implied provisions to the effect that your company has the right to enjoy the easement free from disturbance by the neighbouring owner and that your company will be responsible for the repair of the drains or other facilities by which the easement is used.

Easements registered after August 25, 2002 also have implied terms relating to dispute resolution. If a dispute arises, either party may serve written particulars and both parties must promptly meet to try to resolve the dispute in good faith without going to court. If the dispute is unresolved after 14 days (or any longer period agreed) the parties must go to arbitration. If one party is in default of an obligation, the other may also serve written notice requiring compliance within seven days. If it is not, the party who served the notice may carry out the obligation and recover the cost of doing so.

In your situation, subject to the precise wording of the easement registered, it is probable your company will be responsible for repairing the drains. If the need to repair the pipes has come about because of something attributable to your neighbour which has interfered with your use of the drains he may be liable in damages which would in effect be the cost of repair.

The interference must be substantial, rather than minimal, because an easement is not a right of ownership or occupation but only a right to reasonable use of land owned by someone else. If the roots have damaged the pipe causing it to leak it certainly seems arguable that the roots have substantially interfered with the right to convey water or sewage. This will be a question of fact and degree which can only be conclusively determined by evidence at a trial or an arbitration.

If the roots have not yet damaged the pipe it is unlikely you will be able to recover damages. However, if there is evidence they are likely to damage the pipe, but have not yet done so, you may be able to obtain an injunction requiring your neighbour to treat the tree so its roots don't interfere. It is traditionally harder to obtain an injunction to require your neighbour to do something positive than an injunction which would require him not to do something, but a court or arbitrator will grant one in an appropriate case. However, as with most neighbour issues, we would recommend proceeding constructively and trying to resolve matters by negotiation, discussion and arbitration before court action.