Is my property suffering from subsidence?
Subsidence is a problem that few people ever consider before it happens to them. However, insurers are reporting a 400 per cent increase in subsidence claims following the UK heatwave in 2018. Therefore it’s important to be aware of the signs of subsidence, what you can do to minimise the effects and to secure your position against any potential third party.
Will my property subside because of a heatwave?
Quite simply, the answer is no. While subsidence cases are increasing at an alarming rate, they are not as common as you may initially expect. This is because the conditions are rather particular. So, while the hot weather may have exacerbated any ongoing subsidence, it will not have ‘caused’ it.
The reason for this lies with the nature of subsidence, which is caused by the desiccation, i.e. drying out, of soil beneath the property’s foundations. The soil below foundation level will only reach such degrees of desiccation through the encroachment of roots from nearby vegetation; hot temperatures alone would not have a substantial enough effect for this to occur.
But what if I suspect that my property is suffering from subsidence?
To take an informed view of whether your property is suffering from subsidence, consideration should be given to the following:
- Is there any vegetation nearby? For vegetation to cause subsidence, it must be within the ‘zone of influence’ of your property. As a general rule, the span of the roots that will affect your property is at an equal distance to the height of a tree. For example, if you’ve got a 15-metre oak tree in your garden at a distance of five metres from your property, you could be at risk.
- Do you know what type of soil your property is founded on? The majority of subsidence cases involve a property on clay soil. This soil can be found all over the UK but is mainly within London. However, for certainty, you can look up the local geology on the British Geological Survey website, simply by entering your postcode.
- Is your property suffering from damage that’s commonly associated with subsidence, such as sticking doors, uneven floors and rucking of wallpaper? Have you noticed any cracking in your property? The type of cracks usually associated with subsidence are distinguishable by the following features:
(a) They have appeared suddenly
(b) The cracks appear to be spreading rapidly and in areas closest to vegetation
(c) The cracks are narrower at one end and run diagonally down the wall
I have all or most of the above
If your answer is ‘yes’ to one more of the factors above, the chances of your property suffering subsidence now look likely. This can be distressing and with good reason: this is your home. If you have the benefit of home insurance, now is the time to get your insurers involved. With the suspicion of subsidence – subject to the level of insurance cover offered – they can carry out the necessary site investigations to confirm that your property is suffering from subsidence. It’s usually a term of an insurance policy that contact is made as soon as you notice any damage. It’s important that there is early investigation in order to try to minimise the cost of the repairs required. Your insurer will usually work with you to achieve stabilisation of the property and assist with taking the necessary action to secure the possibility of a successful recovery of the cost of any repair required from the owner of the offending vegetation.
If you do not have the benefit of insurance, we recommend seeking the advice of an arborist (i.e. a tree expert) as soon as possible. The arborist will assess all nearby vegetation with a view to identifying what is the principle and dominant cause of subsidence at your property.
What if the tree is on someone else’s land?
If your insurers or the arborist you instructed confirms that the vegetation causing subsidence to your property is owned by you, they’ll work with you to remove that vegetation or maintain it to a level that will no longer pose a risk.
However, matters become more complex when vegetation is under ownership of a third party. The first hurdle you and your insurer will face is obtaining the agreement of that third party to follow the arborist’s advice, which will likely be for the removal of the vegetation. Third parties may be reluctant to remove their vegetation for a number of reasons, including amenity value, security and privacy. It will be for you to prove that the vegetation is affecting your property and that it needs to be removed to achieve stabilisation. This process is referred to as ‘mitigation’.
In the event that the third party continues to refuse to remove the vegetation, we recommend seeking further advice from a structural engineer about an alternative engineering solution for achieving stability and from solicitors who can provide assistance with obtaining injunctive relief.
Once mitigation is complete and stability has been achieved, it’s likely that superstructure repairs will need to be carried out to your property (i.e. redecoration).
Are the cost of repairs recoverable from the third party?
In order to successfully recover the cost of repairs from a third party, you first need to prove that their vegetation caused the subsidence damage to your property. This should be done by way of an arboricultural report and other site investigations that have been recommended to you.
However, implication of a third party’s vegetation will not render them automatically liable. It will be for you to establish that the risk of damage to your property was reasonably foreseeable to the third party.
Foreseeability is established at the moment that the third party is placed on notice of a real risk. If the third party is a large organisation, e.g. a local authority, it may be possible to show that they are already on notice by way of a previous subsidence claim against them. In order to do this, you need to obtain specific records about previous complaints and maintenance records.
Establishing foreseeability is more challenging when the third party is domestic homeowner, e.g. a neighbour. In the absence of a previous subsidence claim, the third party will not usually be on notice of a real risk until the moment you serve it upon them. Therefore, it is imperative that the correct notice is given to protect your future position.
How can we assist?
At Lyons Davidson Solicitors, we have a team of specialist lawyers who work predominantly in the area of subsidence. We have experience in all aspects of the claim from identifying the subsidence, mitigation with third parties and pursuing them for repair costs. If you think we may be able to assist with your subsidence claim or any other issues raised in this article, please contact Natalie Blannin or Paris Davey in our Property Insurance Litigation team at [email protected]/01173 945 007 or [email protected]/0117 904 5687.
Posted on Apr 15th, 2019 by Lyons Davidson