By Benny L. Kass
Saturday, November 3, 2007; F23

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.

The Hawaii rule. In 1981, the high court in Hawaii further modified the self-help rule. Normally, the court said, living trees and plants are not nuisances. While it may be an inconvenience for the neighbor if the trees 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. If this is not done within a reasonable time, the neighbor “may cause the cutback to be done at the tree owner’s expense.”

In the Fancher case, the Virginia court considered the various rules and decided to “join the growing number of states that have adopted the Hawaii approach.” The judges provided several reasons.

First, that standard strikes an “appropriate balance” between the competing rights of adjacent property owners.

Second, the court wanted to make sure that frivolous, vexatious lawsuits would be discouraged, while at the same time not precluding a homeowner from recovering where serious damage has occurred. The damage to the Fancher property included displacement of a retaining wall between the two properties, blockage of sewer and water pipes, and impairment of the foundation.

Third, it agreed that limiting the neighbor to the self-help remedy does, in fact, encourage the “law of the jungle.”
Fourth, the other rules were unworkable and difficult to understand and apply.

And finally, quoting a case from Tennessee, which adopted the Hawaii rule in 2002, the rule is “in keeping with the aim of the law to provide a remedy to those who are harmed as a result of another’s tortuous conduct.”

What does this all mean for you if your property is being damaged by a neighbor’s tree?

The first thing you should do is hire an arborist. There are a number of organizations you can find on the Internet to guide you in locating one in your state and in determining what qualifications are needed.

The arborist must personally inspect the tree or trees in question. He or she cannot, however, go onto the neighbor’s property without specific written permission from the tree owner.

“Be clear . . . where the property line is,” says Lew Bloch in the book “Tree Law Cases in the USA.” “Aside from possible civil or criminal actions, some states allow for double or treble damages for trespass cases. And remember that trespass does not have to be intentional.”

The arborist should give you a written report. Assuming that it shows a potential danger, send a copy to your neighbor. Depending on your relationship, I would recommend first approaching the neighbor and explaining your concerns. Show him or her the report.

In many cases, you may be able to amicably resolve the issues. Often, it is less expensive to agree to split the cost of removing the tree than it would be to litigate.
But if your neighbor insists on keeping the tree, you should consult a lawyer knowledgeable about real estate and tree law in your state.

Depending on where you live, you may be able to sue the neighbor, seeking an injunction that would require him to remove the tree. If you can demonstrate actual damage to your property as a direct result of the tree growth, a judge could also award you damages based on the legal theory of “private nuisance.”

Of course, if you live in a place that still adheres to the Massachusetts rule and if you want to take the case all the way to your top court, there is always the possibility that, as in Virginia, the justices will recognize that times have changed and will adopt more homeowner-friendly rules.