COMMON LAWS

Common Laws is a general legal information column written by two local attorneys, Lyn and David Batty. A prior version of this column originally appeared on DavidsonNews.net.

I think that I shall never see a lawsuit lovely as a tree

You should sue. Well-intentioned friends and neighbors offer this advice as the solution to any number of difficult problems. As lawyers, we can tell you that litigation is almost never the ideal solution to a legal problem. One of our favorite television shows stars Stephen Fry as Peter Kingdom, a solicitor living in a small coastal town in England. Kingdom is particularly skilled in brokering resolutions to disputes without resorting to trial. Explaining why he avoids court, Kingdom says:

In my experience, the Law is something we lawyers should avoid at all cost. I can’t stand the sight of blood. Courts are to lawyers what operating theatres are to doctors – best try other remedies first.

The law affects almost every aspect of our lives, including the ways in which we interact with our neighbors, colleagues, and even the government. Although our courts stand ready to administer the law on our behalf, it is “best to try other remedies first.” This advice can be particularly helpful in avoiding unnecessary disputes with neighbors.

Trees are frequently a source of friction between neighbors. This is because trees grow. A small tree planted in the corner of a neighbor’s yard will grow in size and stature until its branches and roots spread from one yard to the next. Leaves from large branches can clog gutters and the limbs may damage the roof. Roots can wreak havoc with underground pipes and weaken foundations. Dying or weakened trees that hang ominously over the house next door threaten serious damage, if they fall.

What are your rights when a neighbor’s tree encroaches on your property? Under general principles of common law, property owners have the right to trim tree branches that overhang their property. This right of “self-help” is not absolute, however. You cannot enter your neighbor’s land to trim the tree without permission, and you are only entitled to trim the encroaching roots or branches up to the property line. Pruning cannot be so severe that it injures to the tree, and you can never cut down the entire tree to remove the offending branches. Just because you have the right of self-help does not mean you should exercise that right. If encroaching tree branches bother you, it is best to let your neighbor know before taking any action. Rather than a surprise, one-sided tree pruning, a better approach might be to propose sharing the costs of hiring a tree expert to trim the entire tree and remove the offending branches in a way that ensures the tree remains strong and healthy.

What if the concern is not just branches overhanging your property, but rather an entire tree that may fall on top of your house during a severe storm?  Liability for damage caused by falling trees is determined by general principles of negligence, or the failure to exercise reasonable care under the circumstances. What constitutes unreasonable conduct as it relates to a tree? The answer to that question depends on the health of the tree. If a homeowner knows, or after reasonable inquiry should know, that a tree on their property is unsound or unhealthy, they are likely to be liable for damage caused by that tree, if it falls. Because the expense of paying for the damage caused by a falling tree is significant, most homeowner’s insurance policies cover damage resulting from falling trees, even if the tree was completely healthy before it was uprooted. Simply knowing that your home is insured against tree damage is likely not going to be satisfactory, if a dead or obviously unsound tree threatens your house. After all, no one wants to live through the trauma of a tree crashing through the roof in the middle of a stormy night, if it can be avoided. If you believe that a neighbor’s tree is likely to fall on your property, let him know. Reasonable property owners are willing to discuss removal of a dangerous tree rather than wait for the worst to happen. This is especially true if, as a neighbor, you offer to share the cost of removal. Unfortunately, the cost of preventative removal is almost never covered by insurance.

So, the answer to dealing with a problematic tree is to simply cut the tree down, correct? If you live in Davidson, don’t run for the chainsaw just yet. Davidson’s Tree Preservation and Landscaping ordinance prohibits the “removal or destruction of a large or small mature tree” without a permit from the Public Works Department. The Town of Davidson interprets this ordinance to protect trees with greater than a four-inch diameter from trimming and removal. Therefore, before pruning or removing any tree, be sure to comply with the ordinance; otherwise, you will be subject to a fine. Permits can be requested on-line at the Town of Davidson website. The Director of Public works is required to issue a permit upon a determination that the “tree or trees to be removed are dead, diseased, irreparably damaged, hazardous, or creating or potentially creating damage to the property or injury to a person.”

And don’t expect the town to take care of the problem. According to the Town of Davidson website, the Public Works Department is responsible only for trees in all public areas of the Town, including Roosevelt Wilson Park, Town Hall, Mimosa Cemetery, McEver baseball fields, Village Green, Beaver Dam Historic House and grounds, and the soccer fields at River Run.

Additionally, the Public Works Department prunes and maintains trees located in the public right-of-way planting strip between the sidewalk and street in newer neighborhoods in Davidson. There are about 3,500 street trees in these planting strips, and the Public Works Department can only trim about 1,500 of these trees in any year. Therefore, if you notice a serious problem with one of the street trees in your neighborhood, please contact the Public Works Department. Other than that, the Town has the right, similar to other property owners, to prune or remove trees that overhang public property and town easements. For example, the Town will generally trim privately-owned trees with branches that hang over sidewalks back to the property line, so that the space above the sidewalk is clear up to a height of about seven feet.

If you have a legal question of general interest, please send us an email ([email protected]) and we might use your question in an upcoming column.

*           *           *

David and Lyn Batty live in Davidson and as lawyers, they also want you to read this disclaimer: We write this Common Laws column for informational purposes only. This column is not legal advice and it should not be relied on for making any decisions that may affect your rights. If you need legal advice regarding a specific situation you should consult a lawyer. No attorney-client relationship is created with any of our readers. Although we try to ensure that the information we provide is accurate, we disclaim any liability for inaccurate, incomplete or out-of-date information appearing in this column.

.