As the old saying goes, good fences make good neighbors. I’m not an attorney and certainly not qualified to give legal advice. However, after scores of litigated cases where I served as an expert witness, I can offer some significant take-home lessons for anyone involved with a neighbor who is a poor steward of their trees, causing you a nightmare of possible consequences as a result.
The first issue regarding trees and neighbors is always reduced to who owns the tree. At the simplest level, with one tree and two neighbors, the land on which the trunk is wholly located is always the owner of the tree. If the trunk stands partially on the land of two or more people, then the tree typically belongs to all property owners in equal amounts. Ownership comes with coveted rights, rights that courts of law take very seriously.
So, what to do if your neighbor’s tree is causing you grief and worry as the limbs or roots of their tree threaten your property or your life? Self-help is the answer, and in many situations, if not most all situations, it’s the only available remedy.
However, self-help comes with rules that may be legally enforced. In almost every state, the rules for self-help include but are not necessarily limited to the following components:
- You may not remove the tree entirely.
- You may prune roots or limbs that encroach over, under, or upon your property.
- You cannot cause irreparable damage to your neighbor’s tree by cutting or pruning the crown or the roots.
- You may not trespass. This includes leaning over the property line, even just a little bit, to make a pruning cut. Trespass also includes the application of chemicals on your side of the property line that may drift or encroach onto your neighbor’s tree. Courts take a hard line on trespass. Don’t trespass.
- In all states, except Hawaii, you must pay for the self-help work. You foot the bill.
So, what should you do if your neighbor’s tree is encroaching over, upon, or under your property causing damage to your home, other fixtures, possibly threatening the life or lives of people occupying the home?
- The first step is an obvious one but crucial to the outcome of the matter especially if consternation is at play which it typically is. Communicate with your neighbor. Meet face-to-face with your neighbor and discuss your fears regarding their tree and your property. Follow up with a written communiqué sent registered mail, return receipt requested. Yes, this is a pain and it’s time-consuming, but it will pay off in the outcome of the matter. Should your neighbor be reasonable (the odds are against you on this one), you may even get your neighbor to pay for some of the remedial work on the tree. Play nice in the sandbox. This is not the time for screaming, cursing, or disturbing the peace. Remember your mother’s admonishment: You can catch more bees with honey than with vinegar. Moms are always right.
- Take pictures of the subject tree. Lots of pictures. When you think you have taken enough pictures, take more. Be certain to capture the property line with a profile photograph of the tree encroaching over, upon, or under your property. If damage has already occurred, like the lifting of a sidewalk, driveway, or pool deck, then pictures are vital to the successful outcome of the matter.
- Keep a daily log. This does not have to be fancy, typed, or bound. Dates and occurrences must be recorded, and it’s better to have too much information than not enough. This daily log will play an integral part in the successful resolution of the matter if the matter goes to court. This daily log will end up being read or recorded into the record should the matter escalate into legal territory.
- Call your insurance agent. Put them on notice of what is going on. Down the road, your insurance company will or has the extreme potential of playing heavily into this matter. If significant damage, personal injury, and, yes, even death come into play, your insurance company must have the necessary information to defend you, or, conversely, represent you as a plaintiff in the matter.
- Look for a professional arborist. There are a few, but not many, arborists who have obtained the credentials to investigate the subject tree in the matter, render an opinion in a written report, and testify in court. More important than credentials, however, is experience. The short list of qualified professional arborists with the credentials to testify on your behalf is further reduced by the experience of managing situations such as the one at hand. You are going to have to do legwork. Make telephone calls. Interview potential consulting candidates. Make certain this arborist is the right fit for you.
- As to an attorney: If this matter occurs before any property damage, personal injury, or death occurs, you can manage this matter yourself in Small Claims Court should a face-to-face meeting not resolve the matter. However, if significant damage, personal injury, or death has occurred, you are going to need an attorney. If your insurance company is managing this matter, it will have the attorney that you need.
As to the monetary damages associated with neighbor disputes, there is a basic rule: Anyone who cuts down, injures, or causes a tree irreparable damage without permission owes compensation to the owner of the tree. Compensation is a subject that stands alone and could fill a two-day seminar with information. Remember: To have the legal right to compensation for a damaged or dead tree, the owner’s property must be damaged.
So, if a neighbor pruned your tree that overhangs his property and did a horrible job at it, you have no rights for compensation unless a portion of the tree on your property was damaged. Second, the subject tree must not have the potential to create an immediate or imminent danger to you. Trees that pose a danger to a neighbor’s property do not fall under the same legal protection as a healthy tree.
Most of us have one thing in common: neighbors. We have another commonality. Once our rear tires cross our driveway onto our property, we seem to lose all logical perspective of dispute resolution. So remember your mom’s sage advice: You can catch more bees with honey than you can with vinegar.