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Encroaching Branches or Falling Trees: Rights and Liabilities of Property Owners

Author: Beth Tomasello Date: 01/27/2011

Categories: Real Estate Law

Our area is graced with an abundance of mature trees, many of considerable size. The maturity of the tree canopy is part of what gives many local residential areas their character and contributes greatly to their livability and charm. The severe storms that have visited the region in recent years, however, also remind us of the hazards associated with mature trees. We have seen trees take down power lines, crush cars and houses and even cause deaths. Large trees weakened by age or disease can be enormously destructive when they lose a large branch or come crashing down.

What are the potential liabilities of property owners whose trees threaten or actually cause damage to others? What are the rights of those threatened or injured? These issues can be grouped into two frequently encountered fact patterns. The first involves encroachment by tree branches, roots, vines, and leaves across property lines. The second involves actual damage or injury from fallen trees or branches.

Encroaching Tree Branches, Roots, Vines and Leaves: Self-Help is the Rule

It is not unusual for property owners to become concerned about branches, roots, vines, leaves or other vegetation encroaching on their property, particularly if the encroaching vegetation is a nuisance or is threatening damage. Lawyers are sometimes asked what are the legal rights of neighbors on “both sides of the fence” – those whose vegetation is encroaching and those encroached upon.

With limited exceptions, courts are not open to resolving disputes of this kind, but recognize the right of property owners to exercise self-help. Property owners may prune or cut back branches or vegetation of an adjoining property owner that encroaches on their property. However, a landowner may not enter the property of their neighbor to remove vegetation located on their neighbor’s property. This right of self-help is sometimes referred to as the “Massachusetts Rule.”

Courts in Maryland, Virginia and the District of Columbia have all endorsed the property owner’s right of self help. Virginia courts have also validated a property owner’s right to monetary damages or injunctive relief if the encroachment is causing, or poses a threat of, imminent harm. While Maryland courts have not squarely addressed the issue, they have strongly hinted that in circumstances posing imminent harm, a property owner would have rights beyond mere self-help.

The policy reasons behind the courts’ rulings are straightforward. Courts would prefer property owners to protect themselves rather than burden their neighbors and courts with law suits brought to determine the appropriate remedial action. As the courts noted, it can be presumed that many such cases would be brought by one neighbor purely to harass another. Furthermore, most courts have concluded that trees, in a healthy state, are generally not nuisances and should not, from a legal perspective, be treated as such.

Fallen Trees or Branches: Not Simply an “Act of God”

Courts are more active when presented with disputes involving a fallen tree or branch that causes injury or damage. Landowners may not always plead that a fallen tree or branch resulted from an “Act of God” and escape liability. Courts generally impose of duty of care on property owners with respect to their trees. A property owner can be held liable if he is found to have known, or should have known, about a dead, decayed or otherwise dangerous tree.

In determining whether to hold the property holder liable in such situations, courts often distinguish the duty of care imputed to urban property owners who often have few trees to inspect, have close neighbors and abut relatively heavily traveled streets from rural landowners who may live in a forested area containing many trees, may have no close neighbors and abut rights-of-way which are very lightly traveled. Courts generally impose a higher duty of care on the urban landowner than they impose on the rural landowner.

This leaves the suburban landowner in a bit of a gray area in determining what his or her obligations might be, particularly in light of open space requirements that may leave the suburban landowner (including, for example, a county or municipality) in the position of exercising due care with respect to a forested area in a suburban area (the phenomenon the courts have recognized as the suburban forest). In suburban areas, the property owner should evaluate the feasibility of inspecting the number of trees on his property, the proximity of neighbors, and the likelihood that a tree, even in a forested area, might fall on a house or heavily traveled roadway if it became diseased or decayed. Given the judicial trend toward holding suburban property owners to the higher duty of care typically imposed on urban landholders, suburban property owners would be well advised to err on the side of caution, lest they find themselves facing liability for a fallen tree or branch.

Given that courts will impose liability on a property owner who “knew or should have known” about a dangerous tree or branch on his or her property, what practical steps should a property owner with potentially dangerous trees take? Property owners can help protect themselves from liability by regularly inspecting and maintaining their trees, engaging the services of a licensed arborist to examine and evaluate the condition of the property’s trees where the health of a tree is in question, and promptly remediating any dangerous situations that are visually observable, identified by an arborist or legitimately noted by a neighbor. What a landowner may not do, however, is avoid liability simply by failing to inspect. Knowledge of a dangerous condition will be imputed to the landowner if the court determines that the landowner should reasonably have known of the danger posed by a tree or branch on his property.

This also suggests that a landowner who feels legitimately threatened by a potentially dangerous tree on a neighbor’s land may be able to improve his or her legal position by giving written notice to the neighbor identifying the dangerous condition. Such a warning may prompt the neighbor to take action to prevent property damage or personal injury. In a worst case scenario, where actual damage occurs, proof of prior written notice may help prove the neighbor’s knowledge of the dangerous condition and thereby establish his legal responsibility for the damage.