To cut or not to cut, that is the question? Overhanging trees!

Author: Thomas O'Malley & Frank Cunningham

September 19, 2018

One query that regularly comes up is the rights of a neighbouring landowner (the “Neighbour”) in respect of tree branches which overhang their property from trees rooted in an adjoining property. The Neighbour is faced with the question as to how to deal with overhanging branches. i.e, can they be cut back or not?

The tree, planted in the adjoining land, is the property of that party. However, the overhanging branches have crossed over into the airspace of the Neighbour. The short answer, therefore, is that a Neighbour is entitled to cut back any tree branches which overhang their property, and in doing so are not obliged to give notice to the adjoining owner.

The law governing this issue comes primarily from the Land and Conveyancing Law Reform Act 2009 (the “Act”) which includes in its definition of a “Party Structure” (section 43) a shrub or tree which “is situated at or on or so close to the boundary line between adjoining and separately owned buildings”. Section 44 of the Act goes on to say that a “building owner may carry out works to a Party Structure” for the purposes of carrying out any works which will not cause substantial damage or inconvenience to the adjoining owner.

There are a number of caveats to this and landowners should be aware of the following:

1. Branches may only be cut back as far as the boundary line between properties.
A Neighbour may not, in cutting back branches, interfere with any growth currently in the airspace of the adjoining owner’s property (at least without that owner’s consent). The Neighbour’s rights extend only up to the boundary line between adjacent properties.
The Tree Council of Ireland website (www.treecouncil.ie) explores this and has an excellent FAQ.

2. Care must be taken that, in cutting back branches, the tree is not made unsafe.
It is important to be aware that cutting back overhanging branches may make a tree unstable, “side heavy” and liable to “wind-blow”.
Neighbours should be aware of section 44(1)(c) of the Act which prohibits “substantial damage or inconvenience to the adjoining owner”.
Section 44(2)(a) of the Act directs a Neighbour to make good to the adjoining owner all damage caused “as a consequence of the works”.

It is worth noting that these sections of the Act apply also against the destruction (killing) of the tree. Again a Neighbour, before cutting back branches, should consider the wider effects it will have on the tree.

3. The question of ownership of the cut branches arises.
Some Neighbours erroneously believe that the cut branches remain the property of the adjoining owner and that they are therefore entitled to throw the cut branches back over the fence.
In fact, the branches are and remain the property and responsibility of the Neighbour. It is not permissible (and in fact amounts to a trespass) for a Neighbour to deposit of the branches on the adjoining owner’s property.

In summary, a Neighbour is free to cut back branches which overhang their land from an adjoining land without giving notice. Care should be taken not to cause damage to the adjoining owner’s property or to the tree and the felled branches are not to be deposited on that adjoining owner’s land. In all cases, and where possible, it would be best to discuss with an adjoining landowner the proposed works before they take place as disputes should be avoided if at all possible.

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