IF A TREE FALLS IN AN ASSOCIATION IT DOES MAKE A SOUND: BUT WHO PAYS?

It is Fall in New England and although we received a mere brushing from Hurricane Lee we aren’t out of the woods yet.  If storm damage topples trees and owners or abutters suffer damage your association might have to pay for the damage, but maybe not. 

Whether your association is on the hook depends on the circumstances.  Here are a few common occurrences involving tree damage and liability:

Storm winds cause a tree to topple over crushing an owner’s car:

Damage to cars due to falling trees or limbs is common in communities. As you may expect, because trees are part of the common area, the natural conclusion is the association is responsible for the resulting damage. But, in Massachusetts, there is no strict liability for damage caused by trees. The association is not liable for damages unless there is negligence which generally requires a showing that the responsible party did, or did not, do something and the action caused damage to occur. In the case of trees that showing depends in large part on the health of the tree itself. If the tree was healthy and fell – no negligence and no liability. If the tree, or tree limb, was diseased and/or deteriorated, there may be negligence and liability. Can’t tell the state of the tree? This is when an arborist can be handy.

Tree limb hangs over abutter’s property dropping leaves and dripping sap:

This was the case for Ms. Helen Ponte, a plaintiff in a case brought against an abutter after the abutter’s willow tree (which hung over her land and driveway for years) caused her consternation over clogged gutters, a clogged swimming pool filter, sap on her car, sticks and leaves on her driveway, and ultimately caused her to fall and injure herself.  The case made its way to the Massachusetts Supreme Judicial Court which ruled against Ms. Ponte, stating that an owner of a heathy tree has no duty to prevent leaves or other debris from blowing or dropping onto another’s property and that could not be a basis for negligence or nuisance. 

What can an abutter do when limbs hang over their property?:

Massachusetts law provides a straightforward, good New Englander remedy: chop it off. In one of the few self-help remedies for abutters, the law grants an abutter the right to cut a hanging tree limb back to the lot line. How the other owner reacts is a different story so we still suggest asking first.

Roots from a tree grow over the boundary line and damage piping and cement:

As with overhanging limbs, the law permits an owner to cut roots growing in the soil on his or her property from an abutter’s property. This holding stems from another Massachusetts Supreme Judicial Court ruling, in which the Court opted to follow the “common sense of the common law” recognizing it was wiser to leave the individual to protect themselves in a reasonable way, rather than subject the other to the annoyance, and public burden, of actions of law, which as the Court stated, would likely be “… to innumerable and, in many instances, purely vexatious.”

Abutter reads this article, goes too far, enters upon land owned by another and cuts a tree down:

This will be a problem and a case our office has handled more than once for a plaintiff. The law does not allow an individual to enter onto another’s land without permission and remove a tree. In fact, doing so, pursuant to MGL c. 242, Section 7, can result in damages of three times the value of the tree.

If your association has questions about storm damage or disaster planning, please contact Mark S. Einhorn at meinhorn@meeb.com.