UNTANGLING THE BRANCHES OF TREE LAW

Trees, People and the Law By Kevin J. Best, Esq.

A fall conference workshop held in Cambridge was devoted to municipal tree issues and taught by Michael Galvin, Supervisor of the Urban and Community Forestry Division of the Maryland Department of Natural Resources (DNR). The first order of business for Mr. Galvin was to explain to the group that the purpose of the class was to provide general information and was not intended to substitute for professional legal advice. Participants were advised to consult competent legal counsel as to specific cases.

An overview of Maryland tree law can be found in A Guide to Maryland Regulation of Forestry and Related Practices available on DNR’s website. Mr. Galvin explained that although most people think laws are only found in code books, most “tree law” is more likely to be found in case law made by the courts as it is to be found in statutes. There are five main areas of tree law promulgated by the State of Maryland: (1) Roadside Tree Law; (2) Forest Conservation Act; (3) Tree Expert Law; (4) Reforestation Law; and (5) Critical Area Law.

The Tree Expert Law covers standards of practice governing those that are licensed to provide tree services in terms of arboricultural, ethical and business practices. The regulations were enacted for the first time in 2002 and are revised based on new industry standards about every year.

State law governs roadside trees on all highways and streets in Maryland including municipal roadways. The Roadside Tree Law was dramatically revised concerning roadside tree care experts and roadside tree public agency permits. Effective January 2004, decision making authority is delegated to the local level concerning issuing permits for the removal of street trees. The authority to grant permits for tree pruning as well as removal is now with those local governments possessing a Roadside Tree Public Agency (RTPA) permit from DNR.

RTPA permits are issued to State agencies, counties and municipalities for continuing programs of general tree care using specified types of tree care, based upon the skills of those supervising the program. Roadside Tree Maintenance (RTM) permits are issued to corporations and utilities for continuing programs of general tree care using specified types of tree care, based upon the skills of those supervising the program. Roadside Tree Individual (RTI) permits are issued for a specific tree or group of trees for specific tree care operations. The RTI permit form is used if you do not have a RTPA or RTM permit, or if your RTPA or RTM permit does not authorize the desired work.

Local governments that possess RTPA permits must observe established conditions before granting a live tree removal permit to an individual, which include (1) the need to eliminate a hazard to property or public safety and health; (2) the need to prevent the deterioration of other trees; or (3) the need to improve the general aesthetic appearance of the right of way. A hazard to property is defined as a dead tree or one that has caused damage to “hardscape” resulting ina need for repair for which previous damage to water or sewer infrastructure has occurred or where severe surface rooting on a private lawn exists.

A hazard to public safety occurs when a tree is dead or is in a condition that poses a significant risk of failure and subsequent impact to an area used by people, which obscures traffic control devices and cannot be mitigated by pruning according to ANSI A-300 standards or which obscures sight distance where pruning according to ANSI A-300 standards cannot mitigate the obstruction. (ANSI stands for American National Standards Institute.)

A hazard to health occurs when a tree poses a specific heath risk to a specific person identified in the application which may include: (1) documented severe allergies to specific tree types, flowers, or fruits; or (2) asthmatic reactions related to high VOC-emitting trees. (VOC is the acronym for Volatile Organic Compounds.) This does not include the normal processes of trees (flowering, fruiting, leaf drop, etc.) in general terms, without a documented or demonstrated health impact.

The necessary improvement of a deteriorated tree condition occurs where a tree is recognized by the Department as an invasive exotic plant or one that is injured, decaying, declining, mechanically unstable, or in any other similar condition such that the site would be best served by removal and replacement. Furthermore, a tree will be removed for the general aesthetics of the right-of-way if it is (1) declining; (2) unsightly; (3) of poor form or structure; (4) inappropriate for the site; or (5) in a condition such that the site would be best served by removal and replacement.

A dangerous tree condition existing on public property may give rise to a cause of action for which a public entity may be held liable if the following elements are satisfied: (1) the public property was in a dangerous condition on the date of the incident; (2) the plaintiff’s (victim’s) injury was caused by the dangerous condition; (3) the injury occurred in a way which was a reasonably foreseeable consequence of the dangerous condition; and, (4) the dangerous condition was created by a negligent act or failure to act by an employee of the public entity acting within the scope of their employment; or, the public entity had actual or constructive notice of the dangerous condition in a sufficient amount of time before the accident so that it could have taken steps to prevent the injury.

Negligence is defined as doing something that a person of ordinary prudence would not do, or failure to do something that a person of ordinary prudence would do, under similar circumstances. Whereas an Act of God is a force of nature that is (1) unexpected and unforeseeable; (2) the sole cause of the accident; and (3) one that could not have been prevented by reasonable care.

According to Mr. Galvin, a frequent question occurs where a neighbor complains about a tree overhanging the property line. Maryland subscribes to the “Massachusetts Rule” which states that no cause of action will accrue against the tree owner for the overhanging limb; however, the offended person may

exercise self-help in the matter by pruning the tree in a manner that leaves it in a reasonable condition. According to the Court of Appeals of Maryland, “a landowner has a right to cut encroaching branches, vines and roots back to the property line … but may not enter the adjoining landowner’s property … without the neighbor’s consent.” Melnick v. CSX, Md. (1988).

Mr. Galvin cautioned that the courts do not consider non-noxious plants to be nuisances. Nor are natural processes ( e.g. “casting shade or dropping leaves, flowers, or fruit…”) to be considered nuisances. A person may engage in self-help if trees cause actual or imminent danger of harm or may request that owners remedy the problem, and charge them if they do not respond within reasonable time frame.

The next major issue addressed at the workshop dealt with the question of who is responsible for fallen trees or limbs. Mr. Galvin cited a Washington Post article that sarcastically stated that if “[a] healthy tree in a storm falls on your neighbor’s house, it’s no longer your tree … it’s now your neighbor’s tree.” In other words, unless your neighbor can prove you were negligent or had some forseeability of the danger, it is probably going to be considered an Act of God and your innocent neighbor will have to have his own insurance cover the claim for damages. However, although under no legal obligation, some public agencies will remove a tree having fallen on private property which originally grew on public land, as a customer service to its residents.

Mr. Galvin explained that the courts would look at a number of factors to determine liability for falling trees. These factors include whether the tree was planted by someone or occurred naturally, whether the tree was in such poor condition that it gave the owner some notice of a potential for injury, or whether the owner was given some notice as to the forseeability of the incident.

The final segment of the workshop involved a series of real life scenarios or case studies. Mr. Galvin presented the audience with the relevant facts and asked them to predict the decision by the court or tribunal using the rules of law he had previously discussed. Several of the participants who were called on to predict the outcome of a given case guessed incorrectly because a number of the cases presented were settled between the parties without a complete judicial ruling and application of the law. Nonetheless, the audience of municipal officials left the workshop with a deeper appreciation for trees and the law.

Kevin J. Best was formerly MML’s Director of Legal & Information Resources.

Untangling the Branches of Tree Law

By Benny L. Kass
Saturday, November 3, 2007; F23

If the roots of your neighbor’s tree are damaging your property, what legal rights do you have? It depends on where you live.

Different states have adopted different rules regarding tree law and liability. In September, the Virginia Supreme Court reversed its long-standing position by holding that where a neighbor’s tree causes harm or poses an imminent danger of harm to an adjoining property, the tree owner “may be held responsible” for this harm.

Before this, Virginia followed a variation on what is called the Massachusetts rule, which holds that a property owner’s right to protect his property from the encroaching roots and boughs of a neighbor’s tree is limited to self-help. In other words, the property owner has the absolute right to trim the branches and cut the roots, but only on his own property. He cannot enter the tree owner’s property, and he cannot sue the tree owner.

In Fancher v. Fagella, 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.”

To my knowledge, every state allows a property owner to exercise this self-help. 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 the branches or roots.

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

The Massachusetts rule. As noted above, even if a tree damages the neighbor’s property, that neighbor is limited to self-help. That is his only remedy. Some judges have called this rule the “law of the jungle.” In one Tennessee case, the judge wrote, “Self-help effectively replaces the law of orderly judicial process as the only way to adjust the rights and responsibilities of disputing neighbors.”

For all practical purposes, Maryland and the District follow this rule.

The old Virginia rule. Until the Virginia high court reversed itself, since at least 1939 the law there had been that the injured landowner was limited to self-help “unless the encroaching tree or plant is noxious and causes actual harm to the neighboring property.”

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

The restatement rule. The American Law Institute, a prestigious organization of lawyers, judges and professors, periodically issues “restatements of law” on various topics. While such statements are not binding on courts, they do help lawyers and judges understand and interpret cases. The Restatement of Torts, announced in 1979, said 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.

Most states rejected this theory because it is often impossible to determine whether a tree is “artificial” or “natural.” If you had just moved into a home, you may have 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, the court said, living trees and plants are not nuisances. While it may be an inconvenience for the neighbor if the trees 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. If this is not done within a reasonable time, the neighbor “may cause the cutback to be done at the tree owner’s expense.”

In the Fancher case, the Virginia court considered the various rules and decided to “join the growing number of states that have adopted the Hawaii approach.” The judges provided several reasons.

First, that standard strikes an “appropriate balance” between the competing rights of adjacent property owners.

Second, the court wanted to make sure that frivolous, vexatious lawsuits would be discouraged, while at the same time not precluding a homeowner from recovering where serious damage has occurred. The damage to the Fancher property included displacement of a retaining wall between the two properties, blockage of sewer and water pipes, and impairment of the foundation.

Third, it agreed that limiting the neighbor to the self-help remedy does, in fact, encourage the “law of the jungle.”

Fourth, the other rules were unworkable and difficult to understand and apply.

And finally, quoting a case from Tennessee, which adopted the Hawaii rule in 2002, the rule is “in keeping with the aim of the law to provide a remedy to those who are harmed as a result of another’s tortuous conduct.”

What does this all mean for you if your property is being damaged by a neighbor’s tree?

The first thing you should do is hire an arborist. There are a number of organizations you can find on the Internet to guide you in locating one in your state and in determining what qualifications are needed.

The arborist must personally inspect the tree or trees in question. He or she cannot, however, go onto the neighbor’s property without specific written permission from the tree owner.

“Be clear . . . where the property line is,” says Lew Bloch in the book “Tree Law Cases in the USA.” “Aside from possible civil or criminal actions, some states allow for double or treble damages for trespass cases. And remember that trespass does not have to be intentional.”

The arborist should give you a written report. Assuming that it shows a potential danger, send a copy to your neighbor. Depending on your relationship, I would recommend first approaching the neighbor and explaining your concerns. Show him or her the report.

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

But if your neighbor insists on keeping the tree, you should consult a lawyer knowledgeable about real estate and tree law in your state.

Depending on where you live, you may be able to sue the neighbor, seeking an injunction that would require him to remove the tree. If you can demonstrate actual damage to your property as a direct result of the tree growth, a judge could also award you damages based on the legal theory of “private nuisance.”

Of course, if you live in a place that still adheres to the Massachusetts rule and if you want to take the case all the way to your top court, there is always the possibility that, as in Virginia, the justices will recognize that times have changed and will adopt more homeowner-friendly rules.