Q Our neighbour's trees are causing subsidence to our bungalow. We informed our insurers and they sent a surveyor, who confirmed that this is the case. He contacted the neighbours in November, but so far nothing has been done. We sought advice from the local council but it said it could not do anything. Surely if people are causing damage to property they should be brought to task. We are pensioners and this is causing us considerable distress.

A Roots or branches from a neighbour's trees that cross the boundary on to your land are trespassing. If the roots grow under your house and physically damage the foundations, then you have a claim against the neighbour.

However, since the 1970s it has been better understood that most of the damage caused by tree roots is indirect. Thirsty roots interfere with the moisture levels in the soil, causing the buildings to shift downwards (subsidence) or upwards (heave). If the roots of your neighbour's trees are causing cracks in this way then you can claim for nuisance, even if the roots do not cross on to your land.

To establish liability, you will have to prove that the neighbours knew about the problem (or ought to have known about it) and that they failed to deal with it. They are also liable for the damage already caused. In the leading case of Delaware Mansions v Westminster City Council, the House of Lords decided that the tree owner is liable even though the damage has been caused continuously over a period.

Local authorities are responsible for the trees on their land or in the street. However, because in your case the trees are on private land, the council is perfectly correct that it is not liable. It is up to you to pursue your neighbours by issuing court proceedings.

Damages would include the cost of repairs, the reduction in the value of the property (if there is a loss on sale) and any other expenses directly arising from the problem. You would almost always obtain an order from the court requiring the neighbours to cut back the roots or to otherwise control the trees properly.

Your insurers really ought to be dealing with this for you. You must chase them up.

The writer is a barrister at Tanfield Chambers. E-mail your questions to: property.consumer@thetimes.co.uk

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