Property Nuissances

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Tree Law: Can You Touch Your Neighbor's Flora?

Although you are sometimes allowed to exercise self-help, it's best to use common sense.

Your neighbor's tree is causing you a lot of grief. The roots are starting to sprout out all over your lot, and you're concerned that the roots will eventually crack the underground water and sewer systems on your property. Additionally, leaves, nuts and other debris are constantly falling onto your property. You've discussed the matter with the neighbors, but they do not want to take any action. They claim they "love" their tree, and thus are surprised that you do not have the same attitude. What can you do to protect your own property?

Believe it or not, there are differences in the laws, depending on the state where you live. When I first started to do some research on this matter, I was quite surprised at the voluminous amount of litigation that has taken place over the years between adjoining neighbors.

From the Center of the Earth, Clear into the Sky

There is an underlying legal theory that needs to be explained at the outset of this column. There is a concept--known in the law as the "ad coelum doctrine"--which in simple English means that ownership of property extends to the edges of the universe, upward as well as downward. In other words, if you own land, your ownership rights extend to the center of the earth as well as clear up into the sky.

There have been a lot of interesting cases modifying this ancient legal doctrine, including lawsuits brought against airlines, which--when flying over someone's land--caused damage to animals on the property. This article will not get involved in all of the ramifications of this legal doctrine, however.

Getting back down to earth, it is clear that when a neighbor's tree extends over your property line, that tree is violating your airspace rights.

You May Exercise Self-Help

The courts throughout this country have made it clear that you can exercise self-help. You have the right to trim the branches, or remove the tree roots, without the neighbor's consent, but only to your property line. Usually, in other instances, courts frown upon self-help. For example, in most states, a landlord cannot merely throw a tenant out and change the locks.

The Maryland Court of Appeals decided an interesting case in 1988. A landowner brought an action for nuisance, negligence and trespass against his neighbor for damage to the owner's building caused by encroachment of trees, vines, roots and other plants and debris. The Court of Appeals ruled that the only right the landowner had in this circumstance was a self-help remedy and that he could not take the adjoining neighbor to court.

The 'Massachusetts Rule'

Lawyers know this as the "Massachusetts rule;" it limits the adjoining landowner's remedy to self-help. According to an early Massachusetts case:

"The remedy is in his own hands. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another's right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious."

Thus, in the great majority of states in this country, if your neighbor's tree roots are coming onto your property, or if the neighbor's tree limbs are hanging over on your side, you have the absolute right to cut down the tree limbs or remove the roots--but only to the property line.

Under this rule, even if your property is destroyed, you do not have a case against your neighbor unless one of these things is present:

You can prove that your neighbor was malicious and permitted a willful destruction of your property, or
You can demonstrate that the tree will die if the roots are cut on your side of the property. In this case, there is a possibility that the tree may fall, causing further injury to person and property.

The 'Virginia Rule'

There is a slightly different approach, known as the "Virginia Rule," that is taken in some places. Under this approach, the landowner is limited to a self-help remedy unless the tree or plant is "noxious." The courts in Virginia, which crafted this rule, have held that if the protrusion of roots from a noxious tree or plant inflicts injury on the land of another, that landowner has, after notice to the owner of the tree, a right of action at law.

Again, in simple English, you may be able to sue your next-door neighbor for damages, if you have given the neighbor notice of the "noxious" condition, and the neighbor has refused to take action. The dilemma with the Virginia law, however, is that there is no definition of "noxious." Because of this problem of interpretation, most of the other jurisdictions in this country have rejected the Virginia rule.

But even under the Massachusetts rule, there appears to be an exception for dangerous, dead trees. Many states have permitted a landowner to go to court against a neighbor to force that neighbor to remove a dead tree. As one court so aptly stated:

"Although the land owner may have the right to cut back overhanging branches to the boundary line, in the case of a dead and dangerous tree, it may be more sensible to require the owner of the tree to remove it in its entirety, or to be liable for damages. It would be futile to require the neighbor to remove a portion of the tree to the boundary line leaving the hazard of a large portion of the total tree to remain in a threatening position."

Only to the Property Line

Thus, self-help is permitted in all jurisdictions, but only to the property line. And unless you can prove that there is a dangerous condition on your neighbor's property that cannot be corrected by self-help to the boundary line, you will not be successful if you take your neighbor to court.

In 1988, the Maryland Court of Appeals indicated its strong reluctance to expand a property owner's rights against his neighbors, however, by not granting a landowner a cause of action every time tree branches, leaves, and shrubs encroach upon or fall on his property. According to the Court of Appeals, "we have gotten along very well in Maryland, for over 350 years, without authorizing legal actions of this type by neighbor against neighbor."

But Check With Your Neighbor First

If you do decide to engage in self-help, you should first obtain professional guidance from a recognized expert--called an "arborist." Then advise your neighbor of your plans. While this may not be required legally, it certainly makes common sense. After all, these are your neighbors. Give your neighbor a reasonable period of time in which to respond.

I also recommend that you take pictures on a before-and-after basis, so that if there are any questions as to what you did, you will be able to prove what existed before you engaged in self-help, and how you corrected the problem on your own--but only to the property line.

By Benny L. Kass

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