Trees, neighbors, property and related legal issues

by Steve Turner

Often I am asked about legal issues and trees, such as “I want to remove several branches off my neighbor’s tree that are encroaching my property.” Many people are under the impression that it is all right to remove anything that is growing over their property. In most cases this is correct, but there is a stipulation that says you have the right to remove those limbs as long as it does not cause “irreparable harm to the tree.”
Pruning depends on the species

This is were the law can get a little gray because removing similar types or amounts of limbs from different species of trees can have different effects. Some species are much more tolerant than others to pruning, and the size and amount that can be safely removed will vary greatly between them. Most shrubs and many smaller ornamental trees will tolerate heavy pruning without damage and would most likely be able to regrow back to their original form if left alone.

On the other hand, if you remove large limbs from medium or mature trees, it is unlikely that the tree will be able to replace them and the loss will be permanent. In some cases this would be tolerable, but if the tree is stressed or in competition with other trees, the heavy pruning could indeed damage it.

Also, the size of the limb is very important. Removing a limb that is very large may cause a wound that will never close, and form a cavity or structural defect in the future. If you cut lower limbs back to the property line and the canopy above shades them, they will most likely die due to lack of sunlight.

Nevertheless, you do have the right to remove any deadwood or hazardous limbs, regardless of size or effect on the tree.

Getting access to the tree
Another issue becomes access. Do you need to enter the tree from the neighbor’s property or can you do the work from your side? Many tree care companies will not work on neighbor’s trees without written permission from the owner. I would suggest that both parties agree on which limbs are to be removed ahead of time and not just leave an open-ended statement saying that any limb that has crossed the property line can be removed. You may come home to find that your expectations have not been met.

Shared trees
A common situation is a tree or any portion of its base that is growing directly on a property line. In this case the tree becomes joint property and both parties must agree to remove or prune the tree before any work is performed. If the tree dies or becomes a hazard, it is the joint responsibility of the owners to remove it and the cost is to be shared between them.

Hazardous trees
Another situation I run into often is when a neighbor has a hazardous tree that is threatening someone else’s property. You cannot force them to remove it unless your city has some type of ordinance that would allow the city to order its removal. Such is the case with many diseased elms and Dutch elm disease. What you can do is have the tree inspected by an arborist and if it is a hazard, the arborist can write a report that clearly states the tree’s defects and why it is hazardous. This can be presented to the owner and if they ignore their responsibility they can potentially be held liable when the tree fails because it is now a known hazard. If the tree were to fall on or damage your property, you can claim it against their insurance and they would have to pay the deductible.

This only applies if the tree is a known hazard – it will not apply to a healthy tree that fails in a storm. That would be considered an act of nature. Even if the tree showed internal decay at the point of failure, without prior knowledge of this defect you would have to claim it on your own insurance and pay the deductible. For a tree to be considered a known hazard it must evaluated by a qualified individual or be obvious to a reasonable person that the tree has a high chance of failure before it fails. An example would be a dead or leaning tree with a large cavity and decay. You would not have to have a prior evaluation in order to claim it as a known hazard because most reasonable people would be able to tell that this is a danger and act accordingly by having it removed. A tree can only be judged a hazard if it has a target under it, such as a structure or object, or is in an area that a person could be present such as a sidewalk, road or playground. A tree in the back forty with no targets and little chance of people being present could not be deemed a hazard no matter what shape it is in or how dead it is.

As an arborist I am always looking for hazard trees and the signs of structural defects whenever I do an estimate because I can potentially be held liable if I visit a property and fail to recognize a hazard and it ends up causing damage in the future. One of the hardest hazards to detect beforehand is root rot on trees because the damage is below ground and can only be seen if the soil around the base of the tree is removed and the roots inspected. Often the only above ground sign we have is the presence of the fruiting bodies of the fungus in the form of mushrooms around the base of the tree or on the roots. If you see any mushrooms or conks on any part of a tree, it would be wise to have the tree checked out by an arborist. These are signs that decay is present and the arborist needs to determine the extent of the decay to see if the tree is safe or needs to be removed.

These are just a few common examples and brief summaries of how the law applies to trees. For more detailed information about these or other questions, check with your insurance agent and/or an attorney about the specifics of your situation.

Steve Turner is a Certified Arborist from Arboricultural Services in Oakland County, Michigan.

Comments

  1. Jenay Meister says:

    In 2009 I purchased a hud house in Garden City, MI. The house next door is a rental with the same tenants since I bought the house. They have a big tree in their backyard. The top of the trunk of the tree is growing over the fence and literally into the top corner of my garage pushing the wall of my garage out. I have spoken with the owner of the tree several times and he continues to say that I am responsible for the tree’s damages. He also expects me to pay for half the tree removal. Last year he promised to remove the tree and still hasn’t. Now there is MORE damage to my garage and we are arguing about whose responsibility it is to remove the tree. I have pictures of the tree and my garage on my cell phone. I don’t think it’s fair that I pay for any of this since it is not my tree. He collects the rent money every month but doesn’t want to maintain his property. IS THIS MY RESPONSIBILITY??

    • jhofley says:

      Jenay – We looked and unfortunately, we don’t have a Q&A that directly addresses your problem. Since the amount of money involved could be significant, I think the best course for you would be to contact a real estate attorney to find out what your rights are. I’m not sure where you are located but property law varies from state to state. Sorry we couldn’t be of more assistance. Good luck.

  2. Dale Ziegler says:

    I have several posts on the internet that state where a tree stump comes out of the ground is whose property it is on. I have also read that this is accepted as law. My question is: is there a Michigan statue or law that specifically states this to be indeed the law? If so, what is it?

    Thank you!!!

    • Dale-
      There is likely not a black and white answer to your question. My suggestion would be to contact a tree expert in your area and or a real estate attorney. They can answer with far more certainty that we can. Thanks for reading!
      -Jonathon

  3. How close to the property line can a tree be planted? My neighbor has one very close, but the trunk is on his side.

    • jhofley says:

      Deb-

      You might check with your municipality to see if they are any codes in your area to address this (unlikely). Beyond that, the person planting the tree has to understand that any neighboring properties might take issue with branches growing onto their property. From there, Steve illustrates the issues involved with pruning and trimming in those situations.

      Thanks for reading!

      -Jonathon

  4. Preston Hubbard says:

    I’ll get right down to it. I own my home out right, and I have a massive tree in my front yard just past the point where the city would allow me to put up a fence. I’d like the tree gone. Might the city remove it if I ask? or are they more likely to state that they’re not obligated to trim, cut, and remove anything? the tree is on city and or state property in that little courtesy patch that everyone has out front. The city may fine me for not maintaining the land the tree sits on. The same portion of the land I’m not allowed to put a fences. What can I do?

    • jhofley says:

      Preston-We would recommend starting a dialog with the deaprtment of public services in for your municipality and more specifically the forestry department. They can provide guidance on ordinances, etc.

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