Law of Trees
A Legal Moment


“What’s in a name? That which we call a rose
By any other word would smell as sweet.”
                          - William Shakespeare
“That which we call our neighbor’s tree would
by any other word be as nice
only if its branches did not fall in our yards,
if it did not lean over our house, if it did not
threaten to fall on our house, and if our neighbor
would do what we say about the tree.”
                          - Homeowners Everywhere

   I get a lot of questions from homeowners about trees on their neighbors’ properties.  I am going to use this edition of A Legal Moment to address the most common inquiries in a question and answer format.

My neighbor’s tree has branches that extend over our property line.  Can I cut the branches off?

  Yes, at the property line, but you may not enter onto the neighbor’s property to cut the branches at the trunk because that would constitute trespass.  The reasoning underlying this conclusion is that the branches are a nuisance to your property, and you are entitled to a self-help remedy to prevent the nuisance.

   There are a few qualifications.
   First, your remedy is most likely limited to cutting the branches and not to obtaining money damages in a court case.  The general rule is that, absent significant damage to a structure, a landowner is not entitled to compensation for harm caused by trees located on a neighbor’s property.  If, however, there is significant damage to a structure, which is most often tree roots damaging a foundation or driveway, then you are entitled to seek monetary compensation.
   Second, if you are seeking monetary compensation, you may not be successful if the tree is naturally occurring, as opposed to being planted or maintained.  Courts typically deny monetary compensation when a tree is naturally occurring.  Obviously, this distinction may be difficult to prove.  As a result, there is a tendency in the court decisions of some states to do away with the distinction between naturally occurring and planted or maintained trees.
   Third, again in the context of monetary recovery, there may be a prerequisite to notify the neighbor of the harm you are experiencing.  In some courts, a combination of severe structural damage, such as roots penetrating a well, and notice to the neighbor owning the tree create an affirmative duty in the neighbor to stop the harm from worsening and to pay compensation.

Can I require my neighbor to remove a tree that is damaged, diseased, or rotten because it might fall and injure someone or cause property damage?
   You cannot require the removal, but if you notify your neighbor of the dangerous condition, you create a duty in the neighbor to correct the dangerous condition.  If your neighbor does not take corrective action after you give notice of a dangerous condition, the neighbor will be liable for personal injuries or property damage caused by the dangerous tree.  The neighbor cannot unilaterally shift the responsibility for taking corrective action to you, but if you accept such responsibility and do nothing, you will likely recover nothing for future injury or property damage.  North Carolina follows a rule that bars recovery when a harmed person is contributorily negligent.  If you accept responsibility for correcting the dangerous situation and do nothing, you can recover nothing because your own negligence contributed to your harm.

Can I trim, or cut down, a tree that is on the property line between me and my neighbor?
   Yes, if your neighbor agrees, or if you are willing to compensate your neighbor for any loss of value to your neighbor.  When a property line runs right through the trunk of a tree, the general rule is that both landowners own the tree jointly in a form of ownership called tenants in common and are subject to the rules governing such joint ownership.1  First, each co-owner has the right to possess and use the entire jointly owned property.  For a tree, that means either owner can cut the tree down and take, or dispose of, the wood.  However, the second rule makes any owner who cuts a commonly owned tree liable to the other owner for that owner’s share of the value.
   This situation is one of the hardest tree disputes to resolve when there is disagreement.  The best approach is to attempt to reach a mutually satisfactory agreement about the tree.  The Mediation Center in Asheville offers a service to help neighbors resolve any dispute they may be having and could be helpful in this situation.  If agreement is not possible, either owner would be allowed to remove the tree.  If you find yourself having to take this step, I strongly suggest giving a lot of advance notice to the neighbor who disagrees with you.
I could find no decision from North Carolina stating this rule, but it predominates in other states with occasional variations. For example, in one state, the neighboring owners must have planted the tree together or stated some joint intent for it to be a co-owned boundary tree.


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Greg Gregory is an attorney and shareholder at Marshall, Roth & Gregory, PC. Greg's practice encompasses all forms of business and real estate transactions.
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