A Misunderstood Common Law Privilege

misunderstood common law privilegeThere is a misunderstood common law privilege that permits a landowner to cut encroaching tree and plant parts extending onto and into his property from a neighbor’s property. However, that action does not extend to conduct causing damage to the neighboring property. There is a privilege, but it is not absolute. The privilege is not positively accorded to a neighbor seeking relief from joining tree and plant problems. Sometimes the privilege works. Sometimes it is not applicable.

One of the most difficult problems or questions in the urban marketplace for both arborists and government representatives is the issue of neighbor law. Of those difficult questions comes first and foremost, who owns the tree? Once ownership has been identified, the next pressing issue is the authority to prune or mitigate the encroachments from neighbors. Can a neighbor prune a tree that does not belong to him? And, if the pruning can be done, what are the Rules regarding the conduct of the person seeking self-help?

The principal of common law is that landowners have the right to protect his land from injury or threatened injury.  They can even do so when producing a condition that injures adjoining land, if they act with reasonable care. Many states have recognized the right of property owners to initiate self-help and remove objectionable encroachments onto and into their property. Other jurisdictions recognize the right of property owners to remove objectionable growth or encroachments onto their property which deprived them of the enjoyment of their land.

The privilege to remove encroachments from a neighboring property is governed by reasonable care so as not to injure the neighbor’s property. In most jurisdictions, owners have a right to destroy any vegetation on their side of the property. The liability matters join only when the owner of the tree creates harm on the other side of his property.

In a recent assignment for an insurance company, the insured cleared a pathway containing trees contiguous to his neighbor. The trees were typical forest trees or a woodland mix of different species evolving from nature and growing in a haphazard manner. None of the subject trees were unique in any way. During the clearing effort, the insured claimed that he never purposely reached over with his equipment to remove offending branches or tree limbs.

The claimant did not live at the subject property. When he became aware of the clearing, he drove to the property to inspect it. Seeing the damage, he called the police. The insured claimed that he had a right to take down any branches or limbs that were hanging over his property. Photographs were taken of the property. The claimant hired a tree expert to evaluate the damage and place a monetary value on the subject trees. There were hundreds of trees at issue.

The tree expert said that removing the damaged trees would cost over $50,000, and replacing them would be over $130,000. The general rule for recoverable restoration costs are limited to the difference between the fair market value of the real property immediately before and immediately after the destruction of the trees.

There are instances where restoration costs are applicable in the after situation of tree or plant destruction during the exercise of self-help. There is no doubt that landowners have the right to prune encroaching plant or tree parts from a neighbor’s property onto their property. However, that right or privilege is governed by reasonable conduct so as not to cause irreparable damage to the owner of the offending trees.

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In the News

Tree Law Expert Joe Samnik, along with Executive Director of the Southern Chapter of the International Society of Arboriculture (ISA) Skip Kincaid and Attorney Scott Rouse, will be presenting at the daylong workshop in Mobile, Alabama, March 20, 2020.

Trees and Law: Guide to Neighborhood Law and Negligence    

The Alabama Urban Forestry Association, Alabama Forestry Commission, Alabama A&M, Auburn University Extension, and ISA, Southern Chapter have put together a full-day workshop for this high-demand topic.

Topics that will help arborists and landscape architects navigate litigation challenges will include neighbor law, wrongful death, personal injury, and interpretations of the ANSI A300 Standards. Attendees will be presented with actual case law, and the resultant outcomes of that case law, as it relates to their daily activities in
arboriculture.

The agenda and details can be found HERE.
Registration information at http://treesandlaw.ezregister.com

One thought on “A Misunderstood Common Law Privilege

  • Good article, Joe. A couple of questions:

    Why appraise the cost of removal and replacement? What about cost of cure? Or cost of repair?

    I understand that in a couple of states such as Connecticut, people site case law about real estate before and after’s, and turn that into a must do. Most states that I have worked in do not view real estate appraisal as the only or even the primary benchmark for valuing trees.

    If that is what the 10th edition guides appraisers to do, that is just one more problem with the 10th edition.

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