“Caveat Possessor” – Landowner Beware!

Landowners are becoming more susceptible to claims as a result of greenery growing on their property. The most apparent potential liability arises in the case of trees on the boundary of a property. The majority of case law on this point arises in relation to branches overhanging a public access route/highway or even more specifically trees or branches falling onto these routes.

The courts consistently refer to the duty of an occupier of land being founded on the reasonable foreseeability of harm, to include the length of time the owner/occupier has had possession of the land and how obvious a risk the tree posed to users of the road in question. Whilst the body of case law does suggest that the frequency of use of the road in question by the public, or more importantly by the injured party, could give rise a potential defence, landowners should be advised that the courts will be keen to see what, if any, inspection has been carried out of the offending greenery.

Courts have taken differing views as to the issue of inspector competence; especially where defects are structural in nature, however, concerned landowners would be best advised to employ the services of a trained specialist such as an arboriculturist tree surgeon).

A useful example of the court’s thinking on the matter can be seen in the judgment of Gillen J in Ulsterbus Limited v John Sufferin (2010) NIQB 52 where it was held that the employment of a landscape gardener to identify and cut away low hanging branches previously identified as obstructions was sufficient for the landowner “to be satisfied that he had neither inherited or acquired any property where there was now a risk of danger”. In that specific case the claim brought against the landowner for damage to a bus caused by branches allegedly overhanging a highway was dismissed.

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While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.