Who pays for the damage when trees fall?

Who pays for the damage when trees fall?

If a tree falls in the forest, no problem.

But when a tree falls in your yard???

Trees are serious business. Often the planting, maintenance or removal of trees are the cause of serious neighborhood disputes and unfortunately lawsuits.

During the recent storms, thousands of trees were uprooted, blown over, damaged and otherwise redistributed around the neighborhood. The responsibility for this cleanup has homeowners pulling out their insurance policies and trying to make sense of them.

Generally speaking, trees that fall onto your land are your problem and may be covered by your homeowner's insurance policy. This is true even if those trees are rooted on your neighbor's property. You are responsible for costs of removing the downed tree on your property and for the damages that the tree caused. For this reason, it is essential that you consult your insurance agent to make sure your policy covers these casualties in amounts reasonably calculated to cover the costs of tree removal or restoration.

The average cost for removing a 40-foot tree that is 36 inches around will run approximately $1,000. Actual costs will vary based on the location of the tree, the branches, the tree's condition and whether you want the wood left behind, cut into usable firewood or hauled away.

Before you engage a tree removal contractor, make sure he or she is licensed and insured. In D.C., a general business license is required for tree removal. This license can be obtained by tree removers in two categories: home improvement or general contracting. Verifying a general business license in the home improvement category can be done online at cpms.dcra.dc.gov/BBLV/default.aspx. To verify a general business license in the general contractor category, you have to call DCRA license division at 202-442-4311.

Homeowners in Virginia can check to see whether their tree removal contractor is licensed by visiting www.dpor.virginia.gov/licensees. In Maryland, tree removal is covered by rigorous tree expert licensing requirements. The list of licensed Maryland Tree Experts can be consulted at www.dnr.state.md.us/forests/tree_expert_search.asp.

Tree removal contractors should carry property, casualty and especially worker's compensation insurance. Without worker's compensation insurance, any tree removal worker injured on your property could sue you for the damages suffered in the line of work. According to the American National Standards Institute, tree removal is often the most dangerous and expensive of tree care services: "Very few industries have a fatality rate above 30 per 100,000 ... the fatality rate among police officers and detectives is about 13.5 per 100,000 ... the annual fatality rate for tree workers generally does not dip below 30 per 100,000 and may be higher in some years."

Steven Rubenstein, owner of A3 Insurance Services in Gaithersburg, said, "Property owners are responsible for protecting their property." It is essential to review your policy coverage with your insurance agent, since coverage will vary from company to company. Rubenstein added that "certain insurance companies take the position that only property owned by the insured is covered," therefore "when an insured's tree falls and destroys the neighbor's fence, the claim may be denied since the fence was not the insured's property." Unless the neighbor who suffered the damage can claim that the tree owner was negligent, he may be out of luck and may have the bear the cost, not only of the fence damage, but also for the tree removal.

However, if your neighbor knew that his tree was a hazard to persons or property and failed to take any corrective action, he may be deemed liable for the damages caused by his negligence. If your neighbor habitually ignores hazardous trees on his property and they periodically fall and damage your property, his conduct may rise to the level of legal nuisance and be actionable in court under that theory. Of course, determining when a tree is a hazard may require the expertise of an arborist certified by the International Society of Arboriculture. If you have concerns about your neighbor's tree, your best approach is to send your neighbor a letter via certified mail, return receipt requested, putting him on notice of the hazardous condition. Ideally include the certified arborist's report.

For trees that remain standing, but may need to be removed, D.C. homeowners need to be aware of the District of Columbia Municipal Regulations containing the following: "Except as otherwise provided, no person or non-governmental entity shall remove a Special Tree without a Special Tree Removal Permit issued by the Urban Forestry Administration, as provided in the Urban Forest Preservation Act of 2002."

Special trees are defined as trees measuring more than 55 inches around at the base. This provision is strictly enforced by the District. A six-page special tree removal permit application must be completed and approved before you can remove a special tree. Trees smaller than 55 inches around can be removed in the District without a permit. Violations are punishable by fines of $100 per inch of the tree removed in violation of the regulations.

Arlington County residents may remove trees without obtaining permits, with some exceptions. Montgomery County residents with lots of 40,000 square feet or smaller may remove trees from their land unless prevented or regulated by a given municipality or homeowner's association rule. Homeowners may also prune neighbors' trees that overhang their own property, but must do so with care. If the pruning damages or kills the tree, you may be held liable. When in doubt, it is wise to consult a certified arborist to advise whether the pruning will damage the tree.

With apologies to Joyce Kilmer:

I think that I shall never see,

A poem as lovely as a tree,

except the tree once rooted next door,

that now is resting on my bedroom floor,

The tree's removal is my toil,

because its roots would not stay in the soil,

My insurance agent, I will call,

And if he won't pay what's due,

I guess I'll have to sue.

Harvey S. Jacobs is a real estate lawyer in the Rockville office of Joseph, Greenwald & Laake. He conducts residential and commercial real estate settlements throughout The District of Columbia and Maryland, He is an active real estate investor, developer, landlord and lender. This column is not legal advice and should not be acted upon without obtaining legal counsel.