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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.

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."

[Note: Post initially accidentally published when incomplete.]

V:
Excuse me, but as a non-lawyer I don't see anything unusual about that. I would have imagined it was a traditional and standard principle. The tree is your property, just like your dog. If your dog damages my property, you're liable, right? I assumed the same would be true of the tree. Can you clarify why this is an unusual or inappropriate decision? Is this some new trend? What was the older understanding of liability?
9.15.2007 4:32pm
Randy R. (mail):
The article talks about the old law, and the massachusetts rule, so you can read all about it there.

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.
9.15.2007 4:44pm
Frater Plotter:
It's complicated by the fact that the tree is a living thing not entirely under the control of its nominal owner, and that it is part of the landscape and setting of both houses and the neighborhood as a whole. It would be undesirable if the law encouraged homeowners to cut down all their trees out of fear that one of them might somehow do harm to a neighbor. Indeed, the neighbor might not like that at all.

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.
9.15.2007 4:50pm
Truth Seeker:
V's question unfortunately shows the thinking of most people, that someone has to pay for accidents and acts of god even if no one did anything wrong.

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.
9.15.2007 4:54pm
Anonperson (mail):
Truth Seeker,

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?
9.15.2007 5:21pm
Freddy Hill:

V's question unfortunately shows the thinking of most people, that someone has to pay for accidents and acts of god even if no one did anything wrong.


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).
9.15.2007 5:43pm
John Armstrong (mail) (www):
The article points out that the old law "is unsuited to modern urban and suburban life."

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.
9.15.2007 5:50pm
crane (mail):
Anonperson - that is exactly the kind of thinking that leads others to remove their trees for fear of lawsuits. How, exactly, would you suggest that a homeowner keep tree roots originating on his own property from crossing the property line? It's not as if you can put up fences underground to stop them.

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.
9.15.2007 6:42pm
Frater Plotter:
Some important facts about trees and tree roots:

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.
9.15.2007 7:18pm
EIDE_Interface (mail):
Lawyers prefer the current system of everyone can sue for any piffling reason. They make a killing. There's a special circle of hell just for tort lawyers.
9.15.2007 7:39pm
Anonperson (mail):
crane,

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.
9.15.2007 8:07pm
Tony Tutins (mail):
Here's a hypo for you all. My back fence neighbor had a fast-growing locust tree for years -- it was planted by some previous owner years before he bought the house. He decided to cut it down because it kept dropping leaves (and on one memorable occasion, a squirrel) in his kids' Doughboy pool. The tree sprouted anew from a root on my side of the fence. I cut it back as far as I could without renting a chain saw. Periodically it shoots up sizable branches that need pruning, and thus is a continuous irritant.

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?
9.15.2007 8:17pm
crane (mail):
Anonperson -

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.
9.15.2007 8:59pm
Frater Plotter:
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 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.
9.15.2007 9:18pm
Eli Rabett (www):
Well, this actually happened to me. There was a very large and old tree that covered several nearby yards (townhouses). It was rotten and, in a large storm the trunk broke and the tree rested against my house.

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
9.15.2007 11:18pm
Jimmy S (mail):
If I, as a tree owner, must "own" the ill effects of my tree on my neighbor (by paying for damages it causes), why can't I also "own" all the benefits it may provide to my neighbor?

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?
9.15.2007 11:40pm
Crunchy Frog:
Don't know how it is in other jurisdictions, but in Los Angeles, if your tree pushes up the sidewalk in fron of your house, the city will come after you for the sidewalk repair. And God help you (and your homeowner's policy) if some pedestrian falls down and breaks a hip before it gets fixed.

It's your tree; you are responsible for its ill effects on the neighborhood.
9.15.2007 11:57pm
theobromophile (www):

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.

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.
9.16.2007 12:14am
Waldensian (mail):

Lawyers prefer the current system of everyone can sue for any piffling reason. They make a killing. There's a special circle of hell just for tort lawyers.

No doubt it's found one level above the circle for ignorant curmudgeons who rant in the form of sweeping generalizations.
9.16.2007 12:28am
Lev:

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.


What?! Are you saying that bit about the Ents and the tree herds was fantasy?
9.16.2007 1:26am
Avatar (mail):
If the trees are enhancing the property values of the neighborhood as a whole, why doesn't the neighborhood association take out no-fault insurance for the whole subdivision? All tree-caused damage is paid for, neighbors don't have to fight over trees, and there's no anti-tree disincentive. The policy would probably be pretty cheap split over a few hundred people...
9.16.2007 2:58am
R. Richard Schweitzer (mail):
Though this statute preceded my admission to the VSB by 13 years, I find it simply a part of the futile attempts to "codify" everything. At one of the VA CLE courses, the mentor held up a copy of the Code of Virginia (1920, I think), A thickish, but single volume. Today, whilst not a close rival to the I R C, that Code is a few shelves long. That's more of a problem than defining "noxiuos."

R. Richard Schweitzer
s24rrs@aol.com
9.16.2007 10:43am
kdonovan:
Why does the state supreme court redefine the law? If the law if bad or unsuited to modern times then the elected legislature can change it. The court should confine itself to issuing rulings based on what the law is, not changing the law because the court no longer likes the law.
Kevin
9.16.2007 11:36am
MDJD2B (mail):
Blogs are made by fools like me,
But only God can make a tree.
9.16.2007 11:58am
Daniel J. Wojcik (mail):
Has all this come up due to city folks moving into the 'burbs and further out, not being used to life where there is dirt instead of concrete?

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.
9.16.2007 12:57pm
A parent (mail):
In New Jersey we had a neighbor who had an obviously diseased tree near our common property line. A young tree was growing near it, but was being crowded by the older tree. I pointed this out to him and suggested that, if it were my tree, I'd remove the old, diseased tree and "give the young tree a chance." He did not do so. Over the next several years, in three separate incidents: 1. Falling branches from the diseased tree fell onto my garage, making a large hole in the roof and damaging my car. 2. In another storm, branches fell onto support wires for an electric pole. This resulted in a fire, and took out electrical and phone service to the entire neighborhood for over 24 hours. And, I sustained damage to my yard from the trucks that had to get into the back yard to clean up the mess. 3. The entire tree finally fell into my backyard, taking the young tree with it.

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.
9.16.2007 6:53pm
unwelcome guest:
There are some counties in Maryland where the county owns the trees that it planted on private property (about 50 years ago). You actually can't take down a county tree on your property (even if diseased); you must ask the county to do so. Try holding the county liable (in most states, a taking can't result from a merely negligent act).

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.
9.16.2007 7:41pm