When talking about trees and neighbors, most diligent arborists are aware of what self-help means. Self-help is the only available option when managing an uncooperative neighbor whose tree is encroaching onto or into an adjoining property owner’s land. Of course, it is incumbent upon each of us to attempt a mutual agreement between two neighbors regarding the costs of mitigating complaints as well as limiting the issue at hand.
But what to do when the neighbor who owns the tree is uncooperative and will not participate in mitigating the danger or nuisance of his tree to your client? The answer is, of course, self-help. There is no shortage of case law regarding this issue of self-help.
Please note that this article cannot be construed as giving legal advice. The author is not an attorney and is not qualified to give legal advice. If you need legal advice, seek the services of a qualified attorney.
There are rules to self-help. Every arborist working on an adjoining property owner’s tree must know the limitations when it comes to working on that tree. Here are the basic rules to follow when engaging in self-help:
- You cannot trespass. That means even leaning across a property line to make a cut with your saw. You do not need to move equipment or yourself or your workers onto a neighboring property to be guilty of trespassing. Courts take an extremely narrow view of trespassing. If you were guilty of trespassing, you have two significant issues. One may be the self-help you initiated in the way that you did it. But the other issue is that you trespassed and that is extremely difficult to defend. Courts of law instruct jurors to guard against underpaying the owner of the tree more carefully than to overcharge the arborist who damaged it. Do not trespass.
- You cannot cause irreparable harm to the subject self-help tree. Flush cuts are one example of irreparable damage because the damage cannot be repaired. A topping cut in many cases can be repaired. However, the topping cut is almost always made on your side of the property line. If you make a corrective cut, you will be trespassing. That means the owner of the tree is going to call another arborist to come in and make corrective cuts on your work. You may well be responsible for paying that bill. Make certain that the cuts you are making are correct and professional. If you cannot make correct and professional cuts, you may wish to consider not engaging in the assignment. Alternatively, consider explaining why you cannot make a proper cut without trespassing. If your explanation falls on deaf ears, think twice before making a cut that will need to be repaired by yet another arborist that you will pay for.
- You cannot remove the entire tree. And you cannot effectively remove the entire tree by over-pruning or pruning it in such a manner that causes irreparable damage, effectively causing its removal. If the trunk of a tree sits on a property line, regardless of the percentage owned by either owner, then all owners of the tree share equal ownership of that tree. Permission must then be received by all parties of ownership to remove the tree.
- Get everything in writing. Sure, right now your client is telling you that his neighbor and he are great friends, that the neighbor himself does not like the tree and wants it removed or pruned. That the neighbor is even going to pay for some of the treatment costs. That is all fine and good until the neighbor sees his tree after you have pruned it, or after you have removed it. Then, suddenly, the owner of the tree gets amnesia. The owner of the tree hires another arborist to put a value on the subject tree. And you get served with a lawsuit for damages. You need this permission to work on the subject tree in writing. The person who owns the tree must be aware that you are going to work on it, which includes removal. Have the owner of the tree reduce to writing some type of a dated memo or letter stating that he is aware of what you are going to do and that it is okay by him. If you do not “get it in writing,” you may well find yourself in court defending that which cannot be defended.
- Do not disturb the peace. Tempers and emotions run high when it comes to trees. We all know that. But with self-help, there are many triggers that get pulled. If there is an argument between the two neighbors, step aside and get out of it. It is not your business. You can answer questions that have been asked of you by any of the parties involved. Perhaps your expertise will settle some type of a dispute. But stay out of the fight. It is no place for an arborist.
Everybody loves trees until they become a neighbor’s tree. Take great care to not make an already bad matter worse.