Q: Who would be
responsible if a tree located on one property falls onto an adjoining
property, causing property damage or personal injury? An additional
question on the same subject, what recourse would I have if the
underground root system from a neighbor’s tree spread onto my property
in such a way as to damage, or create the potential for damaging, my
home’s foundation or my fence?
A: Judging by the
number of letters I receive on the topic, trees are second only to
fences as a source of friction between neighbors. But tree disputes
often are more difficult because of the emotions they evoke. People
get plenty upset about fences – who’s supposed to maintain them or
whether they’re on, or too close to, the property line, of course. But
hardly anyone feels the same way about a fence that they feel about a
100-year-old tree. That’s probably why the laws and rules surrounding
trees are so complicated; it also no doubt explains why no one ever is
satisfied with the answer to a tree question, regardless of what side
of the dispute they’re on. But here goes.
The question about liability for property damage or personal injury
burns on whether the incident was foreseeable. If a violent storm
sends a huge limb from your neighbor’s tree crashing through the roof
of your house, that’s an unfortunate occurrence, for which no one
really is to blame. Thus, your homeowners’ insurance should cover the
damage. On the other hand, if your neighbor’s tree has been dead or
dying for months, and if your neighbor was aware of the problem but
failed to do anything about it, then the storm damage is something he
arguably could have foreseen and possibly prevented, by removing the
tree or trimming its diseased limbs. In this case, according to the
attorneys I queried, your neighbor does have some liability, and his
insurance company rather than yours, ought to foot the bill.
The liability issue isn’t always as clear-cut, however. Even though
your neighbor has some responsibility for preventing his trees from
damaging your property, and even if the danger is foreseeable, you
have some obligation to take reasonable steps to protect yourself and
your property. If you park your car repeatedly under a tee limb that
is dangling dangerously and clearly about to fall, you can’t expect a
court to be completely sympathetic when the inevitable occurs and you
insist that your neighbor should compensate you for the damage. In
that case, my legal sources agree, “You go to court with unclean
hands.”
At a minimum, you should notify your
neighbor, in writing, that the tree represents a threat and ask him to
take care of it. If he refuses or ignores the letter, write again (or
have an attorney write) telling him if he doesn’t deal with the
problem, you will. At that point, you have a couple of options: File a
nuisance complaint with the local Inspectional Services department or
its equivalent, and see if they will put some pressure on your
neighbor; or file a similar complaint in court. It is usually best to
avoid a Nike-type self-help solution (“Just do it!”), but if the
danger really is imminent – if the tree literally is about to fall on
the roof of your house — then it makes sense to take reasonable
measures to protect yourself and your property. You’ll want to make
sure you document both the danger (with pictures and the assessment of
tree specialists) and your unsuccessful efforts to persuade your
neighbor to deal with it.
The same answer applies generally to your question about the tree
roots spreading onto your property. The owner of the tree has a
responsibility to prevent it from encroaching on the property of
others. But in this case, the threat is less immediate, and you’d
probably have less justification for taking emergency action. If you
act on your own without a court order or an administrative decision in
your favor, your neighbor may be able to sue you successfully for
damaging or killing the tree.
