If you are spending your days raking leaves that fall from your neighbor’s tree, it may be that time of year when you wonder if there are legal implications should your neighbor’s tree cause damage to your property.
The answer, you may have guessed, is that it depends.
The Virginia courts considered encroachments of trees and shrubs in Fancher v. Fagella, 274 Va. 549, 650 S.E.2d 519 (2007). In that case, the roots and branches of a large shade tree on Defendant’s property caused significant damage to Plaintiff’s neighboring property. The tree’s invasive roots damaged the fence between the parties’ lots, displaced Plaintiff’s patio pavers, and damaged Plaintiff’s sewer and water pipes and the foundation of Plaintiff’s house.
The Supreme Court adopted the following rule:
[E]ncroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to [adjoining property], and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.
Id. at 555-56, 650 S.E.2d at 522.
The Court found that the landowner was permitted to exercise self-help by cutting the encroaching branches or root up to the property line. However, an adjoining owner is only able to recover damages against the tree owner if the court finds that the tree owner had a “duty to protect” the adjoining owner’s property from damage caused by the tree’s roots. A duty to protect would arise in cases of standard residential adjoining lots, but presumably not, for instance, if the land abutting the property was forested or agricultural.
If there is such a “duty to protect”, the remedies may be one of the following:
- The adjoining owner may be reimbursed for his self-help;
- The tree owner may be required to remove the encroaching branches and roots; and/or
- The tree owner may be required to completely remove the tree.
If there is no such duty, the adjoining owner’s sole remedy is to exercise self-help by cutting away the branches and roots.
The Virginia Court has elaborated on a tree owner’s neglect to maintain his or her tree in other scenarios. For instance, in Cline v. Dunlora South, LLC, 284 Va. 102, 726 S.E.2d (2012), the Court found that a landowner has no duty to inspect and cut down sickly trees that could possibly fall in the road and inflict injury. (What happened in this case? You can probably guess – a sickly tree fell down on a public road and inflicted injury.)
If a tree falls on an adjoining owner’s property, the Court found that unless the tree owner was negligent in inspecting and cutting down the sickly tree, there is no liability. See Townes at Grand Oaks Townhouse Ass’n, Inc. v. Baxter, 86 Va. Cir. 449 (Va. Cir. Ct. May 9, 2013).
If you have a legal question about an encroaching sickly, or damaging tree on your property or your neighbor’s property, contact a real estate attorney.