Khan and Khan have a double meaning, both the clarification of the law and its practical application. From a legal point of view, the decision confirmed the Tribunal`s position on reasonable foreseeability. Under the ABI Domestic Tree Root Agreement, UK insurers have not asserted rights to the reduction unless the landowner is aware of the risk and has not taken preventive measures. This has given rise to the mistaken belief that actual knowledge of risk is a condition of liability. Khan and Khan`s verdict corrects this misunderstanding. Rather, it is an objective test: would a reasonably prudent landowner have anticipated the risk of subsidence damage? If so, the landowner may be held liable even if he has not foreseen this risk himself. The practical meaning is that landowners now know that they need to be vigilant if they take into account all the factors that could indicate subsidence, including the position, height and condition of their trees or other vegetation. In addition, soil type is a relevant factor, with the judge stating that “a reasonably prudent landowner with trees on his land before 2006 should have known that there was a risk of property degradation due to tree roots, in particular clay subsoils” (paragraph 48). If you would like advice on tree root subsidence or other property disputes, please contact Charlotte Waters by waters@fsw-law.com or by phone 0207 993 6960. If the customer was aware of the discounts when buying the new policy but had not disclosed it, the current insurer might still be able to lift the policy due to substantial secrecy.

To help these situations, the Association of British Insurers (ABI) has published its Domestic Subsidence Agreement. When you enter into this agreement, you have to manage the change in insurance rights this way: the soil decreases in volume when it loses moisture, which makes the clay soil particularly vulnerable, since it is composed of 30-35% water. Soil with a high clay content can be dried out if it has little moisture, causing the soil to shrink. Clay soils are particularly common in the south-east of England, so this area is most likely to suffer from subsidence. Part 2 of this blog will take a closer look at discount insurance rights and commercial real estate. Mackie QC J. in Loyaltrend Ltd v. Creechurch Dedicated Ltd [2010] EWHC 425 (Comm) drew the Tribunal`s attention to the difficulties encountered when there is more than one insurer during the claim period, in determining “to whom and to what extent liability must be incurred”. If a right to discount compensation is invoked just before the start of a policy, it is likely that an insurer will argue that the lowering and the damage and/or loss caused by the reduction were caused prior to the policy. Homeowners often find it difficult or expensive to purchase non-life insurance after claiming a right to the discount. While not all subsidence problems can be avoided, a few simple steps can be taken to protect your belongings and avoid long-term problems if you live in an area of clay soil: the first sign of subsidence is usually the appearance of cracks in the walls of your home, either in the interior plaster, or in the exterior masonry. Subsidence cracks are very different from other cracks.

They usually occur suddenly, especially after long periods of drought, and tend to: without legal action, you cannot force third parties to reduce or remove their trees. . . .