My house is semidetached and extends approximately 6ft beyond the rear wall of the adjoining house. My neighbour planted a large rose bush against my side wall a few years ago. This rose now climbs up to a height of almost 5m against my side wall.
I understand roses can have deep root systems. My house was built in 1850 and has foundation walls only. I am concerned that the root system of this rose bush is going to damage the wall foundation right beside it. I would prefer to – excuse the pun – “nip things in the bud” rather than wait for foundation problems, presumably subsidence, to develop. While I appreciate that my neighbours have the right to plant whatever they choose, what are my rights when it comes to their planting right beside my house’s side wall/foundation?
You have a right to protect your property, but demonstrating that the rose bush is a risk may be necessary. As the root system is not accessible for inspection, the potential damage, if any, is unknown. In addition to exerting pressure on the foundation, the growing root system would absorb moisture and cause shrinkage in a clay type soil, thereby weakening the underlying support to the foundation.
To deal with it, I suggest you consider a three-stage approach.
The first stage is to have an amicable conversation with your neighbour, outline your concerns, including the nature of the foundation and the possible risk of damage from growing roots. Your objective should be to bring the issue to their attention and assess their reaction. You may suggest relocation of the rose bush.
If you believe your neighbours will co-operate and remove the rose bush, you should monitor the situation and have follow-up conversations if necessary. However, if you detect reluctance to co-operate, you can assume that the issue is likely to become adversarial.
The second stage involves building your case. There may not be any obvious indications of damage by the roots, but it is advisable to engage a chartered building surveyor to carry out an inspection and give you a written assessment. The foundation will be a key factor in the assessment. As you do not have access to it at the location of the roots, you should, if possible, excavate an opening in the ground at the external rear wall of your house close to the boundary to facilitate an inspection of the depth and condition of the foundation by your surveyor. This will enable the surveyor to form an opinion on the nature and depth of the foundation at the location of the roots.
Your surveyor will also inspect and photograph the internal surface of the wall at which the rose bush is located to ascertain if cracks or dampness are evident. If your surveyor’s assessment states that there is evidence of damage and that the roots are the likely cause, this will give you a strong case against your neighbour. If there is no evidence of damage, it will be necessary for your surveyor to monitor the situation periodically over several months, or more if necessary. Without evidence, you are dependent on your neighbour’s goodwill and co-operation to deal with the issue.
However, if there is evidence of damage, or if damage becomes obvious during subsequent monitoring, you should engage again with your neighbour and offer them a copy of your surveyor’s report and ask them to co-operate in resolving the issue. If your neighbour continues to refuse, you should tell them that you have little choice but to consider getting legal advice on how to protect your property.
If there is still no positive response, the third stage will require a consultation with your solicitor who will consider various options. The first option may be to write to your neighbour requesting them to co-operate. Alternatively, your solicitor may consider if your neighbour is liable under nuisance law.
If the damage is significant, or in the opinion of your surveyor, is potentially significant, your solicitor may apply to the District Court for a Works Order which is provided for under Sections 43 to 47 of the Land and Conveyancing Law Reform Act 2009. This legal provision covers a wide range of boundary-related issues that need to be rectified, and provides for access to adjoining property if necessary.
The details contained in your surveyor’s report will be essential for your solicitor to assess your case and advise if it is sufficient to persuade the court to grant a works order. Provided a sufficiently strong case is made, the District Court will grant a works order if an adjoining property owner refuses consent to grant access for inspections or necessary maintenance work, on or close to the boundary between the respective properties, to protect the applicant’s property.
Hopefully, by means of persuasion and patience on your behalf, and goodwill and co-operation on your neighbour’s behalf, you will resolve the issue without getting to the third stage and thereby maintain good neighbourly relations.
Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of the Society of Chartered Surveyors Ireland.
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