When you first moved into your home, you planted a tree just inside your property line. So, it’s your tree, right? Maybe. It depends on how much it has grown and whether any of the trunk is now in your neighbor’s yard.
In most cases, a tree positioned on a property line is considered common property. As such, it’s owned by both property owners. This usually means that the tree cannot be pruned, destroyed or altered without both owners agreeing to the changes. Sometimes this requires them to have a written agreement on the terms of care for the tree.
According to a book, entitled Arboriculture and the Law, published by the International Society of Arboriculture and written by lawyers Victor Merullo and Michael Valentine, the courts apply this joint ownership principal even when a tree begins life on one person’s property and grows on to another. So, if it started out as your tree, you are forced to share the decisions and cost of care with your neighbor. If it started out as your neighbor’s tree, you may be the unwitting co-owner. Of course, you and your neighbor could agree, preferably in writing, that the person who planted the tree will be solely responsible for its care.
Even if you are the sole owner and caregiver of a tree, you have certain responsibilities to your neighbor, and your neighbor has certain rights. In the eyes of the law, you’re responsible for the maintenance and upkeep of that tree. For example, you could be found negligent for failure to prune trees that are blocking visibility from streets, driveways and sidewalks. You’re also responsible for tending to any trees that could cause harm to a neighbor’s home or person.
If the branches and/or roots of your tree grow into your neighbor’s yard, he has the right to remove those portions of the tree extending on to his property. Such intrusions can cause damage to sidewalks, driveways, garages, rooftops, and sewage and drainage pipes.
In Arboriculture and the Law, Merullo and Valentine wrote that courts, in most cases, have decided in favor of a neighbor being able to remove portions of trees that may not be planted on their property but have limbs or roots that reach across property lines. Courts have determined that a landowner owns all the space above and below his property, and if something invades either of those areas, it is his right to remove it. However, he doesn’t have the right to do anything to the tree that would weaken or kill it.
You can’t simply plead ignorance to the condition of trees on your property to escape liability in the case of tree failure. An act of God occurs as a result of “totally natural causes, which could not be prevented against by the actions of any particular individual.” If you could have prevented the damage through regular checks and maintenance of a tree on your property, it is not an act of God and you could be held liable.
One of our 10 Certified Arborists should be your go-to person for tree-related matters. We recommend a hazard assessment to determine if a risk is present. After damage has occurred, our Certified Arborist should be called upon to assess your financial loss, including the cost of removal and repair, for insurance, tax or legal purposes. Our Certified Arborist can also handle repair or replacement.
Finally, we recommend that you document your landscaping investment to help establish its worth. Take photos of your trees and plants so you have before and after examples should you need to establish value.