If a Tree Falls in the Suburbs, Who Is Liable?
Virginia has become the latest state to adopt the rule that landowners can be liable when trees on their property cause damage to neighboring properties.
In the past, most states used the "Massachusetts rule," which held that if a tree grew on your property but the branches hung into your neighbor's yard, that neighbor could cut them back as far as the property line. If the roots cracked the neighbor's patio or if the branches ripped their siding, it was their problem. And if the neighbors' pruning killed your tree, you could sue them for damages.[Note: Post initially accidentally published when incomplete.]Maryland and the District still follow the Massachusetts rule, according to officials there.
Virginia's 1939 law was slightly different. Under that law, which was overturned yesterday, a landowner could sue a neighboring tree-owner only if the tree was "noxious" and caused "sensible injury." A big problem, however, was that no one ever defined a "noxious tree."
One question, of course, is who owns the tree? If a tree is wholly on your property, then you do. But what if only a part of the tree is? What if half the trunk is on yours, and half on mine? What if the trunk is on my property, but the major branches are on yours? The issue can often be complex.
Consider the following perverse result: Everyone wants to live in a tree-filled neighborhood, but nobody wants the risk of being sued by their neighbors for harms caused by trees. So everyone has an incentive to cut down their own trees (to avoid lawsuits) even though this has the result of creating a treeless neighborhood.
The obvious libertarian solution would be for all the neighbors to adopt a covenant to hold one another harmless for tree-related damage. The Massachusetts rule is merely a legislative imposition of a rule that tree-loving neighbors might freely adopt by themselves, if they were sufficiently (a) foresighted, and (b) cooperative.
It used to be that people were only liable if they were at fault, if they did something bad or something negligent. If you had an obviously dangerout tree on your property and you didn't cut it down and it fell on someone, you were negligent and therefore liable. You weren't liable if it just fell with no warning. And you surely weren't liable if a tree did what trees naturally do, grow limbs and roots.
The new trend is that even if you did nothing wrong, you have to pay just because you happen to own something. If a perfectly healthy looking tree on your property falls through no one's fault, you're liable. If its roots grow under your neighbor's patio, you're liable. In the oast if your neighbor didn't like roots growing under his patio he could cut them off at the property line.
It's just another diminution or property rights and growth of the nanny state where government makes us take care of our neighbors. And more work for lawyers helping all the neighbors sue each other.
In America today it seems clear the most people want someone to take care of them. If a hurricane comes, they expect the government to step in and save the day, if a root grows onto their property they want the neighbor to protect them from it. Just remember, for all this nannying, we'll need to pay much higher taxes, higher insurance, higher rent. Nothing is free.
You seem to have it backwards. It's my property, so you should keep your tree roots under control and off my property. Those are my property rights. Why should I have to pay to remove your tree roots?
Now, if you want to claim that the tree is a natural thing, and is not your responsibility, then fine. Surely then you won't object to me coming over and killing it?
Of course somebody always pays for accidents and acts of god. By default it is the owner of the lost property who pays, either by replacing it or living without it. The question really is how creative the owner can get to make somebody else pay, viz. your neighbor or, more and more, the government (by which read all neighbors).
So, why should the new rule apply to rural areas where the old rule was eminently sensible? If we're to take the principle of localized government (state laws vary from state to state) why shouldn't we apply different rules county-by-county? Let Arlington County use the new rule and let Pittsylvania county keep the old one.
Science fiction stories may be able to create invisible barriers that plants can't grow beyond, but we're unlikely to have them in real life anytime soon.
Tree roots usually extend some ways beyond the range of the tree branches. People can trim or prune tree branches, but can't normally trim the roots; the only way to limit the growth of roots is to dig them up and possibly kill the tree. Roots, because they are underground, are invisible under normal circumstances, so they are not usually noticed unless they cause a problem. Trees take a long time to grow; a piece of property may pass through several owners in the time that it takes a tree to grow to full size.
Contrary to the beliefs of certain hippies, trees are not sentient. Unlike humans (and dogs), they do not have any notion of property or territory. You can teach a dog not to roam (or you can just tether it), but you can't teach a tree not to grow roots that extend over a property line. The only way to completely ensure that doesn't happen is to not have a tree in the first place.
For reasons that are likely both instinctual and cultural, many people seem to like to live around trees. Having big, old trees on one's property and in one's neighborhood is often regarded as desirable. Such trees are associated with age, tradition, and respectability, and may (ceteris paribus) substantially increase property values: an established, tree-lined neighborhood may be much more valuable than a brand-new subdivision studded with freshly transplanted saplings. As with many visible features, a neighbor's trees affect one's own property values.
In short, trees and their effect on people are complicated. We should expect rules about trees to be similarly complicated in order to navigate the space of values without causing perverse and undesirable ("cut down all the trees, even though everyone likes them!") results.
Well, I think that one liberterian answer would be that that is your problem. It is my property, it is up to you to figure out how to not damage it.
Let's assume the damage has been done. It's not, as some have suggested, that some act of God has occurred, and we need to find someone to pay. Someone already is paying, but previously it has been the property owner. Does it make more sense to let the property owner pay, or the tree owner? I would vote for the tree owner, since he is the one who could actually do something permanent about it.
As you say, there is no way to build an underground fence. So, are you suggesting that I pay periodically to keep your tree out of my property? That sounds an awful like you are expecting other people to pay so that you can enjoy your tree.
So, is it now my tree? Is it still his tree? If it's his, can I get him to remove the part that's left on my side? If he argues that he didn't plant the tree, do I have an argument that he's still responsible because trees are an equitable servitude that run with the land?
It is my property, it is up to you to figure out how to not damage it.
It's not as if I'm deliberately planting trees so that their roots will damage your brickwork. If my property has a tree that's large enough to do that, odds are it was planted long before I bought the place. Do I now have an obligation, upon buying a piece of property, to remove from it any feature that might potentially irritate my new neighbors?
That sounds an awful like you are expecting other people to pay so that you can enjoy your tree.
As another poster pointed out above, large old trees are generally considered desirable, and often increase property values. If I have to remove all trees from my property to ensure that your property remains free of tree roots, that may well decrease the resale value of my home. That sounds an awful lot like you are expecting other people to lower their property values so that you can enjoy your root-free status.
That wasn't my point. The point was that my trees increase the property value of your home, the other guy's home, and everyone else around's home -- because people like trees. If you can threaten me with impunity because of my trees, then I have an incentive to cut them all down, which harms everyone's property values (and happiness).
The fact that my property values are hurt if I cut down by trees doesn't give you a reason not to sue if my trees harm you. Rather, the fact that everyone's property values are hurt if I cut down my trees, gives the whole community a reason to hold me harmless.
My neighbor, who owned the yard where the tree grew, collected insurance on the incident and refused to contribute to having someone come in and take down the tree (I was being reasonable). I asked various city departments whose responsibility it was and they said essentially it was my problem because the tree was resting against my house.
To make a long story short, we had the chipper come in and paid for it, but left some large pieces in her yard.
So what should the correct rule be
Under this new doctrine, if my tree shades the south side of my neighbor's house, must he pay me the $20 or $30 he saves per month in electricity bills?
It's your tree; you are responsible for its ill effects on the neighborhood.
How do you figure that? The other option is to have your neighbours subsidise your dangerous tree. (If your tree is not dangerous, then neither you nor your neighbours will pay anything in either situation.) Should your neighbours be financially responsible for your tree, they will have an incentive to go onto your property and tinker with your tree. It would diminish property rights for your neighbour to have an economic interest in whatever goes on in your yard.
Coase theoem: when the costs are the same (and assuming no transaction costs) - i.e. when you or your neighbour would pay the same amount of money to repair tree damage - you should care for your tree, as you are more capable of preventing damage.
No doubt it's found one level above the circle for ignorant curmudgeons who rant in the form of sweeping generalizations.
What?! Are you saying that bit about the Ents and the tree herds was fantasy?
R. Richard Schweitzer
s24rrs@aol.com
Kevin
But only God can make a tree.
My Mother's neighborhood has been invaded by ex-NYCers...who moved to the suburbs to get away from all that city stuff...and now complain about all those noisy birds, and those nasty squirrels running around.
If one of them ever encounters a skunk, I fully expect the National Guard to be called in.
Throughout all this, I had no legal right to trim the tree, since none of the branches were over my yard. It was the direction of the prevailing winds that meant that all the damage was in my direction. And all of the expenses for clean up, removal, and repair were mine. I feel that my neighbor was extremely negligent, and that he surely should have gotten the point that the tree was severely diseased after the first or second incident, but I had no legal recourse. I'm just glad no one was injured when the thing finally came down.
A question to all those who want to hold the tree owner responsible - So what is the level of culpability required? Do you favor a strict liability rule? Is is negligence to allow a tree to continue growing?
I would think the owner of the New Jersey diseased tree could be held liable for a nuisance, even in those jurisdictions where tree owners aren't automatically liable.