Do you need clarification on the laws surrounding fallen tree removal? If so, here are some things you need to know.
First and foremost, it depends.
- Is the subject tree on your neighbor’s property?
- Did it fail in a significant storm?
- Was it a dead tree?
- Was the tree growing on private land, or was it growing on the property line?
All these questions are of concern when answering the question of tree removal, the rights of the neighboring property owner, and your rights.
Who owns the tree? Who is responsible for fallen tree removal?
You must first know who owns the tree before doing anything else. In all states, a tree whose trunk stands wholly on the land of one person belongs to that one person. If the trunk stands partly on the land of two or more people, the tree usually belongs to all the property owners, equal to the part of the tree upon their land.
Suppose there is a question about whether the boundary tree belongs to more than one owner. In that case, the law may examine whether the property owners jointly planted the subject tree, together cared for the tree, or treated the tree as a partition between the adjoining properties.
Boundary trees are often confused with encroachment trees.
A tree planted on one person’s property that grew onto or into an adjoining neighbor’s property is an encroachment tree.
You should know that the laws governing boundary and encroachment trees may differ.
You should also be aware that if a tree falls on your property without causing damage, you will typically pay for the removal unless a driveway is blocked. Your insurance may pay for the removal minus your deductible.
Neighboring property owners and negligence
What rights do you have if a neighbor’s negligence causes tree damage to your property?
You are privileged to have self-help. Florida tree laws already answered the question many decades ago in the landmark case Gallo v. Heller.
This tree law came about because courts could not be bothered with the numerous squabbles caused by innumerable homeowners complaining about trees and shrubs.
You have the privileged, common law right to prune your neighbor’s tree, the limbs, or the roots, at the property line. Of course, you should always notify your neighbor that you will be pruning their tree and do not trespass.
That includes leaning your arm over the property line to prune a limb or cut a root. While initiating self-help, also make sure that you do not cause damage to your neighbor’s tree or property.
Case law brings the gavel down on both sides of this issue. Some case law states it doesn’t matter if you damage the neighbor’s tree or property. There is another case law that states if you damage your neighbor’s tree or property, you might pay three times the appraised value of the subject tree.
You may only cut down part of the tree, not the entire tree. You may not disturb the peace or cause the peace to be disturbed. Err on the side of caution: Do not damage your neighbor’s tree or property.
It is a good idea to hire a tree service credentialed by the International Society of Arboriculture to do the trimming work. These companies are experts at dealing with fallen trees and tree removal, but always compare tree removal estimates to find the best option.
Suppose the neighboring tree poses an imminent threat to your property or life. In that case, you may need to retain an attorney to take your neighbor to court and force them to remove the hazard.
You want to uphold a local tree code ordinance while initiating self-help. Always ensure that you have researched your local government tree codes. If the subject tree is under power lines, it may be causing a safety hazard. Be sure to notify your local electric provider if you believe this.
Of course, you want to talk to your neighbor first about dangerous or fallen trees. Suppose your neighbor’s tree is in disrepair. In that case, conducting a tree inspection by a qualified professional is also a good idea.
Indeed, if somebody must remove a tree, a professional tree removal service would be better than a DIY attempt at removal.
Your neighbor’s responsibility is the same as yours: to inspect for safety and adequately maintain owned trees.
Properly caring for trees is one of the first components of a litigated matter.
What if my neighbor won’t cooperate?
You must start a documentation process now, as the timing is right before any conflict begins.
Write your neighbor a letter explaining that their tree is causing you serious issues. Explain the problems as your homeowner’s insurance policy might come into play.
Inform your neighbor that you have retained the services of a professional arborist to help you identify problems.
A second letter may be in order if the neighbor vehemently objects. This letter will explain the law and your legal right to self-help.
Investing in a tree accident lawyer to write the communiqué on his firm’s letterhead at this stage of potential escalation might be a good idea. Legal letterheads always get priority when opening and reading mail but always suggest mediation.
Documentation
Dedicate an inexpensive notebook and keep a daily log with dates and comments on what has occurred between you and your neighbor.
- Be factual.
- Include receipts for any repair cost incurred.
- Notify your home insurance company about structural damage or other potential dangers.
As to repair costs, if the matter has escalated to this level, retaining the services of an arborist expert witness would serve you well.
In addition to having a track record of litigation experience, this expert will know and understand tree accident loss and the proper way to care for trees, including pruning and maintenance.
Your documentation process must also include, but not necessarily be limited to, who owns the tree, that the subject tree branches and roots are over or under your property, that you have notified your neighbor in writing of the issues affecting you, and that the subject tree does negatively affect you, along with the damages.
Are leaves considered a nuisance?
In almost all situations, the answer is no. Leaves are typically a natural occurrence, even though they cause great inconvenience.
What about ownership of fallen fruit and nuts?
Having a neighbor whose trees or plants produce delicious peaches, nuts, oranges, and the like can be very rewarding. Branches laden with produce from your neighbor’s tree hanging over your property will conjure up images of you harvesting and enjoying the fruits of your neighbor’s work.
But only pick these delicacies after first asking permission from your neighbor to do so. If the tree’s trunk producing the edibles is located solely on your neighbor’s property, the fruit belongs to them.
But what if the fruit or nuts fall to the ground on your property? Can you then pick them up for your personal use?
The law is unclear on this question. However, if the tree owner has yet to try to come onto your property to retrieve the fruit or nuts, it is probably safe for you to do so.
An even better idea would be to ask the tree’s owner for permission to pick fruit that has fallen onto your property. The same is true of fruit on branches belonging to your neighbor’s tree that overhang your property.
Do I have the right to a view?
Typically, the basic rule is that you do not have a right to a view.
There are, of course, exceptions to every rule. In the matter of views, a local ordinance or law may assist you. The covenants of a subdivision or Homeowners Association (HOA) may assist you.
Another exception to this rule is that someone may not deliberately block your view.
You will need the assistance of an attorney should you wish to obtain a view blocked naturally or unnaturally, the former being a tree that has grown into your clear sight line, while the latter may be in the form of a recently erected (spite) fence.
Why do trees fall?
There are many reasons trees fail, in part or whole. Your insurance company will want to find the answer to this question if you are filing a claim.
Attorneys will take depositions under oath if an injury or death is involved with the failure of a tree.
Both plaintiff and defendant will have subject matter tree expert witnesses to render their opinions as to why the subject tree failed.
- Acts of God are the blame for most tree failures. However, the threshold to meet
this claim is challenging to achieve. - Most acts of God are associated with pre-existing conditions that knowledgeable professionals can discover by carefully analyzing the subject tree.
- Tree failures at wind speeds of 54 mph and below are usually associated with defects
or pre-existing conditions affecting stability. - Often it is not the tree that fails but rather the soil it grows in that is to blame. Soil failure is especially true during weather events with heavy rains.
Your insurance policy will not typically cover damage caused by a dead, dying, or diseased tree.
But in this case, where you own the tree, liability would be your responsibility if your or your neighbor’s property is damaged.
What about boundary trees?
In almost every situation, but not all, a tree’s trunk that straddles a property line belongs to both neighbors. And both neighbors own the tree jointly.
Planting trees jointly, having both parties caring for them, or treating them as a partition between adjoining properties can help determine whether trees are boundary line subjects entitled to protection.
One body of law holds that each of the owners upon whose property the tree trunk stands has an interest in that tree identical to the part upon their land.
Of course there’s one caveat: A landowner who first planted a tree on their property that straddles a boundary line can cut the tree down. But suppose both landowners planted, cared for, or treated the tree as a partition between the properties. In that case, tree removal may not be possible.
The other landowner must prove this to be the case, so before starting your chainsaw, consult an attorney.
A tree whose trunk was originally planted on one side of the property line and grew over the boundary line onto a neighbor’s property is an encroachment tree, not a boundary tree. Also, only ever plant a tree on a boundary line if both property owners agree.
What do I do if my neighbor’s tree falls on my home?
You should notify your insurance company immediately.
If the tree hits and causes any damage or your neighbor offers to pay for the damage, notify your insurance company. You will need to be aware of the claim process.
There may be damage to your home that you cannot see, and there may be damage to other structures you are unaware of, but a professional investigator or adjuster will discover this.
It would help if you took pictures, and try to take enough photos from every angle conceivable.
- Make sure that you take pictures of the subject tree itself. Every angle, every part of the tree, wide-angle, zoom-in, everything that is a tree – take a picture of it.
- Take as many pictures as you can of the root ball, but never trespass on private land owned by others.
- Start a daily diary with one page for each date entry. Copious notes. Names. Who said what, and when it was said. Be meticulous.
Notify your neighbor, and be polite even if you have previously warned them that their tree was a danger.
Keep your voice calm and low, as you do not need the police calling on you for disturbing the peace. Do not mention the incident on any social media platform. And again, take plenty of pictures.
What if you are a renter and not the owner?
Be sure to follow all the above recommendations.
Remember that the owner of a tree, even an absentee owner, must inspect their trees and care for them.
What if your tree falls on your neighbor’s home or property?
You should contact your insurance company immediately and take plenty of pictures.
Keep your mouth shut because you will not improve the situation by talking. You are not going to fix anything. You will only make matters worse, so be quiet and polite. Offer no information whatsoever.
Anybody that needs to know anything may contact your insurance company.
Unbelievably, this also includes the police, who may be investigating the matter. Be polite, and refer the policeman or the insurance investigator working for your neighbor to your insurance company.
Your insurance company will provide you with an attorney.
- Begin your daily diary with dates, who said what and when, and include detailed notes. Your daily diary may be seen only by your attorney.
- Do not make any mention of the incident on any social media platform. Your neighbor’s attorney will scour social media for comments regarding the incident.
- Wait to remove the tree until your insurance company tells you. Your neighbor or any of their representatives may only come onto your property to take pictures of the subject tree with written authorization from a judge.
- Be polite and refuse permission for anyone to enter your property, and do not talk to anyone about the incident. Your attorney or insurance company will speak for you and on your behalf.
Fallen tree removal is a subject that attaches itself to a multiplicity of prerequisite conduct, the first being the careful investigation into who owns the tree. Trees are emotional things for many; however, the damage they can do often negates their beauty.
Joe Samnik is not an attorney. Always check in with an attorney before making decisions that might permanently engage you in a regrettable situation. Before purchasing insurance or renewing your current policy, you might ask your agent questions regarding trees that could influence your peace of mind and way of life.