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First step in fight against neighbor’s tree: Hire arborist

Dear Benny: What rights do I have as a homeowner when my neighbor’s tree threatens my property?

Several large branches have fallen from her tree onto my house, the last one damaging my chimney and metal roof. She refuses to have the tree taken down or pay for the damage.

She at first said she would take down the tree and now refuses to do so because it will cost $4,000.

Can I get an injunction from the local county court requiring her to take down the tree? That is what I believe is my only recourse at this time. – Noreen

Dear Noreen: In every state, you have the absolute right to trim any branches that overhang on your property and cut the roots where they are encroaching on your land. You cannot, however, trespass on your neighbor’s property.

But in 2007, the Commonwealth of Virginia — typically a conservative state — adopted what is the modern rule. The Supreme Court of Virginia reversed its longstanding position by holding that where a neighbor’s tree causes actual harm or poses an imminent danger of actual harm to an adjoining property, the tree owner “may be held responsible” for this harm.

Prior to this, Virginia followed what is commonly referred to as the Massachusetts rule, namely that a property owner’s right to protect his property from the encroaching roots and boughs of a neighbor’s tree is limited to the self-help described above. The Virginia court made it clear that its earlier decisions were made “in times when the population was far less densely concentrated than at present and more often engaged in agriculture.”

Over the years, four basic theories have evolved as to whether the adjoining neighbor has any legal cause of action over and above self-help.

The Massachusetts rule: As noted above, even if damage is done to the neighbor’s property, that neighbor is limited to self-help. That is the exclusive remedy. However, some courts have modified this by holding that if self-help causes the neighbor’s tree to die, the tree owner must be compensated by the person who cut down the branches or the tree roots.

The old Virginia rule: Until the Virginia high court recently reversed itself, the law there was that the injured landowner is limited to self-help “unless the encroaching tree or plant is noxious and causes actual harm to the neighboring property.”

But in its 2007 decision, the Virginia court acknowledged that it was difficult to determine exactly what is meant by “noxious.”

The restatement rule: The American Law Institute, a prestigious organization composed of lawyers, judges and professors, periodically issues “Restatements of Law” on various topics. While such statements are not legally binding on the courts, they do assist lawyers and judges in understanding and interpreting cases.

In the Restatement of Torts, promulgated in 1979, it determined that the tree owner has an obligation to control encroachments when vegetation is artificial — i.e., planted or maintained by a person — but not when the encroachment is natural.

In other words, if you planted your tree, and it causes damage to your neighbor, you may be financially responsible for this damage.

Most states rejected this theory, simply because it is often impossible to determine whether a tree is “artificial” or “natural.” And if you just moved into your new home, you have absolutely no way of knowing the origin of your trees.

The Hawaii rule: In 1981, the high court in Hawaii further modified the self-help rule. Normally, said the court, living trees and plants are not nuisances. While it may be an inconvenience for the neighbor if the trees next door cast shade or drop leaves, flowers or fruit, this is not actionable at law. However, “when they cause actual harm or pose an imminent danger of actual harm to adjoining property,” the neighbor may require the tree owner to pay for the damage and to cut back the endangering branches or roots. And if this is not done within a reasonable period of time, the neighbor “may cause the cutback to be done at the tree owner’s expense.”

The first thing you should do is hire an arborist.

The arborist must personally inspect the tree, or trees, in question. Under no circumstances can he go onto your neighbor’s property, unless you get specific written permission from the tree owner. According to “Tree Law Cases in the USA” author Lew Bloch, “be clear of where the property line is.”

Once you get a written report from your arborist, and assuming that it shows a potential danger, send a copy to your neighbor. Depending on your relationship, I would first approach the neighbor and explain your concerns and show him/her the report.

In many cases, you may be able to amicably resolve the issues. It is clearly less expensive to agree to split the cost of removing the tree than to litigate.

But if your neighbor is obstinate and insists that the tree will stay, then you should consult an attorney knowledgeable about real estate and tree law.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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