Dear Alex:
My neighbors have a tree with branches hanging over my yard, and I’m afraid the tree might fall on my property. What rights do I have, and what can I do about it?
This is a common issue among adjoining properties, when the roots and branches of one neighbor’s trees extend beyond their property line and into the other neighbor’s property. The ownership of a tree is usually based on the location of the trunk, not by the location of the branches.
Even if most of the branch leaves encroach onto your property, if the tree trunk is entirely in your neighbor’s yard, the tree, its roots, and its branches are all owned by your neighbor.
There are countless problems that an encroaching tree can create, including damage from tree roots, the safety risks of a diseased or unhealthy tree and damage from fallen branches, and the litter of leaves and twigs can be a real nuisance.
An owner who fails to properly maintain a tree on their property may be liable for damages caused to the owner of the adjoining property when the branch falls onto their house. However, if you are aware of the risk of damage ahead of time, it’s a good idea to take a proactive approach and try to prevent future damage or problems.
If a neighbor’s tree is encroaching onto your property, causing damage from roots or branches, or causing a hazardous condition, the very first step should be to talk to your neighbor and try to reach a resolution or come up with an agreement for trimming the tree. Most neighbors are willing to take responsibility for their property, and this will help maintain a healthy neighborly relationship.
In the event that a neighbor refuses to accommodate a request to cure an encroaching tree, property owners do have the right to trim back the overhanging branches or the roots of a tree at the property line without the tree owner’s consent, as long as it is reasonable to do so. However, if it is not found to have been a reasonable action, the neighbor who cut the tree could face liability for damage caused to the tree.
Cutting the roots and branches of a neighbor’s tree that encroach into an adjoining property owner’s yard may only be done up to the property line, and may not damage the tree’s structural integrity. Generally, this sort of self-help is discouraged without the neighbor’s prior consent. There have been cases where tree owners have sued neighbors for cutting off branches of trees, and the tree owners were awarded thousands of dollars in damages.
Tree branches and roots that encroach on your land and may threaten damage to your property may be a nuisance. If it is a nuisance, you have the right to file an injunction against your adjoining neighbor. When a court grants an injunction, they may require the removal of the tree, and may award money damages for injuries or damage to property suffered as a result of the encroachment. However, to make a nuisance claim you would have to first prove that the encroaching tree interferes with your use or enjoyment of the property.
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