Terran's Tips

Your Trees and The Law

Disputes over trees are a common cause of bad feeling between neighbors. Trees that block the sun, leaves which clog your guttering, roots that choke your drains and or damage your fences. Your differences can usually be settled with a combination of tact and compromise, but if you are forced to, legal action may be your only way out. That could cost you anywhere from hundreds to thousands of dollars and will most likely destroy any neighborly goodwill.

Although storms and tree damage are not the focus of this article I do want to mention a few things that are relevant. The state on Tennessee and the insurance companies follow the acts of God clause. This basically means that in the event of a storm or high wind any damage to a tree (regardless of origination i.e. where the trunk comes out of the ground) and consequent property damages are the responsibility of the homeowner where the tree fell. For example, a thunderstorm blows a large healthy oak over your fence and into your pool. In the process it damages the back of your garage and demolishes your storage shed. The acts of god clause make you, not your neighbor, responsible for the monies involved in the repair of the structures and the downed tree. Dead standing or unhealthy/structurally unstable trees can be deemed negligent and can then be responsibility of the tree owner if documented. In this case it is very important to have a certified arborist make a detailed observation and report and submit this with pictures via a certified letter to the owner of the subject tree. This may save a lot of money and grief in the event of a tree failure. Residential and commercial properties are treated very similar in the eyes of the law.

Trees and the Law
The Property Law Amendment Act 1975 says property owners are responsible for any nuisance or damage their trees cause to neighbors, even if the trees were planted before they bought the property. But first decide whether the nuisance is worth the risk of souring relationships with your neighbor. You need to decide too whether the problem outweighs the benefits the trees give you such as beauty, privacy, shelter and shade. Try to work out a solution tactfully. Give neighbors time to think about what you are suggesting.

They may be quite happy to help with any work caused by their trees if it means saving them. It's far better to talk over the fence than in a court. However, if you reach an impasse, you may need to take legal action. You may either consult with your lawyer, or city official. If you have no choice but to proceed with legal action, at least tell your neighbor. How would you feel if you received a court order in the name of your neighbor without warning? Your neighbor may co-operate if there is a legal obligation to do so.

If branches are growing over your side of the fence, you are allowed to prune them back to the fence. If not, you can ask your neighbor to cut back the trees or remove them. If the neighbor disagrees, you could get a court order to solve the problem.

Example 1
Say for example you buy a lot. There is a large tree growing on the next door property, with branches growing onto your side of the boundary fence. The law allows you to cut off the branches on your side, but they are long and thick making it a major operation. Is your neighbor obliged to do the work or pay for it to be done?

No. Provided the branches are causing no real nuisance, they are your responsibility if they are growing on your side of the fence.

Example 2
You remove a large branch from a neighbor’s tree that is growing over your property. This is quite legal, but unfortunately the result of this amputation is that the neighbor’s tree dies. Can your neighbor demand compensation?

No. You are within your rights when you cut off the branch on your side of the boundary. It could be argued that any resulting damage to the tree was the neighbors fault because he did not prune the branch when it was young and the life of the tree was less likely to be affected.

Trees on a neighbor’s property are blocking sunlight from your house and garden. Is this a good enough reason to insist they be cut back?

Yes. If neighborly reason fails, then you can take legal action. You will have to convince a court that the trees are having an adverse affect on your property and our enjoyment of it. If the court agrees, the neighbor will have to cut those trees back.

Fence Damage
A tree growing on your neighbor’s side of the fence has grown so large that the trunk or roots are now pushing the fence over onto your property. As far as you are concerned, this has already made if impossible to plant anything on your side of the fence near the tree, in case it topples onto your plants. You complain to your neighbor, but get no response. The neighbor says the tree is on his property, and apart from any branches that grow out over your side, it is none of your business. Is he right?

No. The law is on your side in a dispute involving a plant or a construction on a neighbor’s property which is damaging yours. The cost and upkeep of a boundary fences is normally halved between you and your neighbor, but in this case he is liable for the damage and must repair the fence or compensate you for the damage.

However, the law goes further than this and says that if something is a continuing nuisance, and of course this tree will simply go on growing and pushing over the fence, then the cause of that continuing nuisance must be removed. In this case, the neighbor could find he has to lose his tree.

Example 1
A tree's roots on a neighbor’s property continually blocks your drains which mean you have to get a plumber to clear them. He warns you that this will be a regular exercise and expense unless the cause of the problem is completely removed. Even worse, it could eventually cost you new drains. You approach your neighbor about having the tree removed who indignantly points out that the tree was well established on his property long before you bought the one next door, and he has no intention of removing his tree. Have you any comeback?

Definitely. The law does not accept that a tree planted 30 years ago cannot be a nuisance today. If all the facts in this situation were presented in court the neighbor would probably be ordered to remove the tree.

Example 2
Some roots of your neighbor’s tree start pushing up your carefully manicured lawn. You ask you neighbor to do something about it, but she says there is nothing she can do. You then ask her to have the tree removed. She is not prepared to do that. You decide to solve the problem by poisoning the roots on your side of the fence. Unfortunately the poison kills the tree and your neighbor threatens to take you to court for damaging her property. Can she do this?

Yes. You should have dug up and cut off the roots, or taken court action rather that use poison that would lead to the death of the tree. You are allowed to remove any part of a neighbor’s property that intrudes into yours.

But you’re right to take action stops at the boundary line between your property and your neighbors. Using poison that would have an effect beyond your side of the legal boundary is illegal.

A neighbor’s tree always drops leaves in the guttering of your house, forcing you to climb a ladder every few weeks to get the leaves out. What can be done?

If the branches causing the problem are growing over your side of the fence you are allowed to prune them back to the fence. If not, you can ask you neighbor to cut back the trees or remove them. If the neighbor disagrees, you could get a court order to solve the problem.

Loss of View
When you bought your home 10 years ago you had a great view from your lounge window. But now a line of trees has grown high enough to block your view completely. The trees are not on your neighbor’s property but on a property further down the street. Can you do anything about having them cut back?

Yes. You could take the case to court, but this would be costly and you may not win.

Possbile Damage From Aging Trees
A large tree growing on the other side of the fence is obviously dying. You are concerned that at any time the tree or part of it could fall on your house. When you speak to your neighbor, he tells you to mind your own business and that in his opinion there is no chance of that happening. Can you have the tree chopped down?

Yes. Ask your lawyer to apply to for a court order to have the tree removed. If the court agrees that the tree is likely to damage your house, the neighbor will have no choice but to cut it down.

As I mentioned in the beginning of the article, it’s best to resolve any potential neighborly disputes over the fence vs. a courtroom. I recommend that a certified arborist is involved in any tree trimming project, especially those that may have issues like the preceding cases. This helps the homeowner make a case that he or she is ultimately looking out for the best interest of the trees by having a professional engage in the work. If you are in a similar situation and need professional advice please let us know.

Please email joanna@woodlandtree.com or call us at (901) 309-6779 for any of your tree servicing needs.

Posted by Mark Allen at 14:23
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