Commercial Real Estate Blog by Madison

Boundary Trees, Where to Draw the Line….

In a world where party walls, air rights and subway easements can sometimes make life in real estate somewhat complicated, I took a moment to breathe in some fresh spring air and contemplate the beauty of the world around me. I started to focus on a magnificent oak tree, its large spreading branches and its wide trunk, and let my mind wander… to the law of boundary trees, of course!

It can be an innocent act; even a noble one. A tree is planted. Or, a wayward seed floats to the surface from a branch above, lands and takes root. Regardless, with either of these simple acts, a contentious lawsuit can also take root. It likely will take years, sometimes generations, to come to fruition (pun intended). However, one person’s bucolic shade and privacy can become another’s annoyance and nuisance!

So who has ownership of and responsibility for boundary trees, trees that grow on or near the boundary line between adjacent properties? Who has the legal right and responsibility for the removal or care of such trees?

Very generally – the following principles apply:

• If the trunk of the tree is located entirely on one owner’s land (even if limbs overhang or root systems protrude into a neighbor’s land), the person on whose land the trunk is located owns the tree. As owner, he has the clear right to keep the tree or remove it. A neighbor’s shade or enjoyment provided by the tree is irrelevant.

• If the trunk is located entirely on one owner’s land, an adjoining owner has no right to remove or destroy the tree even if it causes personal inconvenience, discomfort, or damage. However, if the branches extend, overhang or if the tree sheds debris onto the neighbor’s land, other rules apply.  See:

- the Massachusetts Rule (Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490, 76 A.L.R. 1109) – A person can plant a tree or forest on his land and a neighbor has no recourse but to trim branches or roots on its side of the boundary.
-  the Hawaii Rule (Whitesell v. Houlton 632 P.2d 1077, Hawai’i App. 1981) – A tree owner has a duty to prevent his tree from damaging his neighbor’s property and he is liable for the damage caused.
- or the Virginia Rule (Fancher v. Fagella 650 S.E.2d 519 274 Va. 549, 2007) – Encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to an adjoining property, and may also be required to cut back the encroaching branches or roots.

• If the tree is located such that part of its trunk is on both properties (even if nearly all the trunk may be on one side), the law generally considers the tree the common property of both landowners. In this case, neither owner has the right to remove or injure the tree without the other’s consent. Even minor trimming should not occur until communication occurs between the owners.

Back outside the courtroom, I can feel the breeze as it rustles the leaves of the mighty oak. Ouch, an acorn just bounced off my head!

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