Q: I live with my girlfriend at her house. I am trying to fix our backyard, and we have a neighbor behind us with a 100-year-old oak tree. There are two main trunks of that tree hanging over our fence line. We are not talking about some small branches, but a main trunk and top canopy is 40 to 45 feet over our property. It hangs over our house, and to make matters worse there is a visible crack, and you can see the water line below that crack.
We went to an attorney, and he sent a certified letter to the neighbor stating not only that it is a nuisance, but the roots of the tree are encroaching on our property and has damaged our fence and the foundation of our property. Of course, they went to their attorney and made up all sorts of lies.
We have pictures of everything. Do you believe that if I ask my attorney to file a nuisance claim against them, a judge will see it our way? We cannot go outside and enjoy our property with family or friends because of the damage that the oak tree does.
By the way, acorns fall in our yard every other day, and I have to bag approximately three to four bags; each bag weighs around 100 pounds.
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Can a judge order the neighbor to remove the trunk and root system out of our yard so we can enjoy it? I do not want the whole tree cut; I just want what is inside of our property removed.
A: I can appreciate your anguish and frustration over this matter. However, I am surprised about the advice provided by your attorney. While he wrote the appropriate letter to the neighbor, the fact is that in every state in this country, self-help is permitted.
That means that you have the absolute right to cut any tree roots that are in your property, and you can cut down any tree limbs or branches that overhang onto your land. You cannot, however, trespass onto your neighbor’s property.
However, what do you do about the situation in which cutting the roots kills the tree, and then if it falls can cause damage to person or property?
I had a similar case years ago with a large walnut tree. My clients filed suit against the neighbor claiming private nuisance, and the judge ruled in my clients’ favor. My clients got some money for the damage to their garage (which was caused by the encroaching tree roots) and to pay for the removal of those roots. However, because everyone wanted to save the tree, the neighbor was forced to secure it so that it would not fall should it ever die because of the cut roots.
Tree law around the country is evolving. While every state allows a property owner to exercise self-help, 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 the branches or roots.
I suggest you have your attorney determine and tell you what the law is in your state.