Q. What rights do I have as a homeowner when my neighbor’s tree threatens my property? Several large branches have fallen from her tree onto my house, the last one damaging my chimney and metal roof. She refuses to have the tree taken down or pay for the damage. Her insurance company claims she is not negligent because in its view the tree is not unhealthy. Its high branches reach precariously over the top of my old Victorian home.
A. I will try to keep my answer short, but the law is evolving rapidly, especially as our courts and judges begin to realize that we are more of an urban nation rather than an agricultural one.
In every state, you have the absolute right to trim any branches that overhang on your property and cut the roots where they are encroaching on your land. You cannot, however, trespass on your neighbor’s property.
But in 2007, the commonwealth of Virginia adopted what is the modern rule. The Supreme Court of Virginia reversed its long-standing position by holding that where a neighbor’s tree causes actual harm or poses an imminent danger of actual harm to an adjoining property, the tree owner “may be held responsible” for this harm.
Before this, Virginia followed what is commonly referred to as the Massachusetts rule, namely that a property owner’s right to protect his or her property from the encroaching roots and boughs of a neighbor’s tree is limited to the self-help described above.
Over the years, four basic theories have evolved as to whether the adjoining neighbor has any legal cause of action over and above self-help.
The Massachusetts rule: Even if damage is done to the neighbor’s property, that neighbor is limited to self-help. That is the exclusive remedy. However, some courts have modified this by holding that if self-help causes the neighbor’s tree to die, the tree owner must be compensated by the person who cut down the branches or the tree roots.
The old Virginia rule: Until the Virginia high court recently reversed itself, the law there was that the injured landowner is limited to self-help “unless the encroaching tree or plant is noxious and causes actual harm to the neighboring property.” But in its 2007 decision, the Virginia court acknowledged that it was difficult to determine exactly what is meant by “noxious.”
The restatement rule: The American Law Institute periodically issues “Restatements of Law,” which assist lawyers and judges in understanding and interpreting cases. In the Restatement of Torts, promulgated in 1979, it determined that the tree owner has an obligation to control encroachments when vegetation is artificial — planted or maintained by a person — but not when the encroachment is natural. In other words, if you planted your tree and it causes damage to your neighbor, you may be financially responsible for this damage. Most states rejected this theory, simply because it is often impossible to determine whether a tree is “artificial” or “natural.”
The Hawaii rule: In 1981, the high court in Hawaii further modified the self-help rule. Normally, said the court, living trees and plants are not nuisances. While it may be an inconvenience for the neighbor if the trees next door cast shade, or drop leaves, flowers or fruit, this is not actionable at law. However, “when they cause actual harm or pose an imminent danger of actual harm to adjoining property,” the neighbor may require the tree owner to pay for the damage and to cut back the endangering branches or roots.
The first thing you should do is hire an arborist. The arborist must personally inspect the tree or trees in question. Under no circumstances can he go onto your neighbor’s property, unless you get specific written permission from the tree owner.
Once you get a written report from your arborist and assuming that it shows a potential danger, send a copy to your neighbor.
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If your neighbor is obstinate and insists that “the tree will stay,” then you should consult an attorney knowledgeable about real estate and tree law.