Storms, Property Law, and Falling Trees

During storms like this weekend’s Hurricane Irene, trees and branches often fall from people’s yards into their neighbors. As a property professor, I sometimes get asked whether the person whose tree fell into their neighbor’s yard is liable for any resulting damage. The answer varies somewhat from state to state. But as a general rule, the owner of the tree is not liable in such cases unless he or she was somehow negligent in caring for it. If a “reasonable person” could foresee that the tree or a branch was likely to fall and cause damage that the owner could have readily prevented, there might be liability. In the vast majority of cases, however, the owner is not liable, especially if the tree was knocked over by an “act of God” such as a storm. Findlaw has a helpful explanation here, as well as a discussion of other property law issues arising from trees.

Even if you believe you do have a good case against your neighbor, you should think carefully before you start a lawsuit over a fallen tree. Given the high cost of litigation, the money you win might not be much more than what you end up paying the lawyers – unless the damage is really severe. The loss of time and aggravation inherent in suing are also relevant costs, even if nonmonetary ones. And then there’s the cost of damaging your relationship with your neighbor, which is especially important if you plan to live in the neighborhood for a long time. In most cases, it’s worth trying to settle your dispute with a neighbor informally instead of going to court. Robert Ellickson’s classic book, Order Without Law: How Neighbors Settle Disputes, has lots of relevant insights on this score.

As a property law specialist, it’s probably against my interest to encourage people to think twice about suing over minor property disputes. But it’s good advice nonetheless. And part of being a good property lawyer is knowing when to tell your client that a lawsuit may not be the best course of action for them.