Va. High Court Breaks New Ground on Tree Liability

By Brigid Schulte
Washington Post Staff Writer
Saturday, September 15, 2007

In the suburbs, there are few issues that can cause as much rancor and neighborhood discord as a deep-rooted, mature tree that has no regard for the neat boundaries of a property line.

Who pays if your neighbor's tree damages your house?

Yesterday, the Virginia Supreme Court weighed in on the contentious issue with a decision that overturns a nearly 70-year-old precedent. Now, for the first time, homeowners can sue to force a neighbor to cut back branches or roots or take out the tree altogether if it poses a risk of "actual harm" or an "imminent danger" to their houses, the court ruled. Tree owners can now be held liable for any damage caused by the tree.

The reasoning? The court realized just how much Virginia has changed.

The justices ruled in a Fairfax County case that the old law made perfect sense in a rural world, but now, with townhouse and condo developments springing up on former farmland, with infill development in cities and densely packed neighborhoods, the law "is unsuited to modern urban and suburban life."

Virginia is the latest state to make such a change. And in other states, it has resulted, at least initially, in far more than heated over-the-back-fence negotiations.

"This is the trend around the country, as we go from having arbitrary distinctions that made more sense in a rural economy," said Steven J. Eagle, a law professor and property rights expert at George Mason University law school. "This is a better line of reasoning. The problem is, it probably will result in more litigation.

"Will there be people who will use this as a cudgel in a battle of spite against neighbors? Sure."

Erik Saunders, a certified arborist, said tree quarrels are among the most common disputes he has seen in his 21 years in the business. "It happens all the time," he said. "And this is a big change. It's going to set in motion more changes."

It all started back in 2003, when Richard A. Fancher bought a townhouse in Cambridge Station in Fairfax. He had noticed the big sweet gum tree in his next-door neighbor's 17-by-17-foot back yard, but, being in a hurry to buy, he didn't give it much thought.

Then he started noticing that his sunken patio, which sat at a lower elevation than his neighbor's, began to crack, he said in court papers. And the brick retaining wall between the two houses began to lean. Fancher got married in 2005, and he and his wife wanted to renovate. That's when, he says, engineers found tree roots from the sweet gum tree in the sewer pipes. They found tree roots in the electrical system. They found that the pressure from the mass of tree roots was cracking the foundation, the court papers say.

"We kept fixing stuff, but the problems kept coming right back, because of the weight of the tree and the roots," said Michelle Cook-Walker-Fancher. "Sweet gum roots are very aggressive. They look like baseball bats, like those things that the cavemen in those Geico ads carry."

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