Untangling the Branches of Tree Law

By Benny L. Kass
Saturday, November 3, 2007

If the roots of your neighbor's tree are damaging your property, what legal rights do you have? It depends on where you live.

Different states have adopted different rules regarding tree law and liability. In September, the Virginia Supreme Court reversed its long-standing position by holding that where a neighbor's tree causes harm or poses an imminent danger of harm to an adjoining property, the tree owner "may be held responsible" for this harm.

Before this, Virginia followed a variation on what is called the Massachusetts rule, which holds that a property owner's right to protect his property from the encroaching roots and boughs of a neighbor's tree is limited to self-help. In other words, the property owner has the absolute right to trim the branches and cut the roots, but only on his own property. He cannot enter the tree owner's property, and he cannot sue the tree owner.

In Fancher v. Fagella, the Virginia court made it clear that its earlier decisions were made "in times when the population was far less densely concentrated than at present, and more often engaged in agriculture."

To my knowledge, every state allows a property owner to exercise this self-help. 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 the branches or roots.

Additionally, over the years, four basic theories have evolved as to whether the adjoining neighbor has any legal cause of action above self-help:

The Massachusetts rule. As noted above, even if a tree damages the neighbor's property, that neighbor is limited to self-help. That is his only remedy. Some judges have called this rule the "law of the jungle." In one Tennessee case, the judge wrote, "Self-help effectively replaces the law of orderly judicial process as the only way to adjust the rights and responsibilities of disputing neighbors."

For all practical purposes, Maryland and the District follow this rule.

The old Virginia rule. Until the Virginia high court reversed itself, since at least 1939 the law there had been that the injured landowner was limited to self-help "unless the encroaching tree or plant is noxious and causes actual harm to the neighboring property."

But in September, the Virginia court acknowledged that it is difficult to determine exactly what is meant by "noxious."

The restatement rule. The American Law Institute, a prestigious organization of lawyers, judges and professors, periodically issues "restatements of law" on various topics. While such statements are not binding on courts, they do help lawyers and judges understand and interpret cases. The Restatement of Torts, announced in 1979, said that the tree owner has an obligation to control encroachments when vegetation is artificial -- i.e., 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.

Most states rejected this theory because it is often impossible to determine whether a tree is "artificial" or "natural." If you had just moved into a home, you may have no way of knowing the origin of your trees.

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