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Root & branch?

11 April 2025 / Mark Pawlowski
Issue: 8112 / Categories: Features , Leasehold , Property , Environment
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Is it possible to own a freehold or leasehold estate in a tree? Mark Pawlowski digs deep

It is trite law that a tree growing on land forms part of the land and, therefore, attaches to the realty owned by the freeholder or leaseholder. What is, perhaps, less obvious is that it is possible for a landowner to own (and to transfer) a freehold or leasehold estate in a tree which is separate from estate ownership of the subjacent soil, provided that the tree has not been severed from the realty.

A separate estate distinct from the soil

A number of early English cases make this clear. In Herlakenden’s Case (1588) 4 Co Rep 62a, at [63b], it was held that, ‘If trees be excepted in a feoffment to a man and his heirs, the trees in property are divided from the land, though in fact they remain annexed to it, and that if one should cut them down and carry them away, it would not be a felony.’ Similarly,

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NEWS
In this week's issue, Stephen Gold, NLJ columnist and former district judge, surveys another eclectic fortnight in procedure. With humour and humanity, he reminds readers that beneath the procedural dust, the law still changes lives
Generative AI isn’t the villain of the courtroom—it’s the misunderstanding of it that’s dangerous, argues Dr Alan Ma of Birmingham City University and the Birmingham Law Society in this week's NLJ
James Naylor of Naylor Solicitors dissects the government’s plan to outlaw upward-only rent review (UORR) clauses in new commercial leases under Schedule 31 of the English Devolution and Community Empowerment Bill, in this week's NLJ. The reform, he explains, marks a seismic shift in landlord-tenant power dynamics: rents will no longer rise inexorably, and tenants gain statutory caps and procedural rights
Writing in NLJ this week, James Harrison and Jenna Coad of Penningtons Manches Cooper chart the Privy Council’s demolition of the long-standing ‘shareholder rule’ in Jardine Strategic v Oasis Investments
Professor Dominic Regan of City Law School and the Frenkel Topping Group—AKA The insider—crowns Mazur v Charles Russell Speechlys LLP as his case of 2025 in his latest column for NLJ. The High Court’s decision—that non-authorised employees cannot conduct litigation, even under supervision—has sent shockwaves through the profession. Regan calls it the year’s defining moment for civil practitioners and reproduces a ‘cut-out-and-keep’ summary of key rulings from Mr Justice Sheldon
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