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Thursday, December 7, 2006

Tree law

In teaching property, I try to emphasize the boundaries between, and overlaps with, other basic subjects.  That helps to justify my spending substantial time on nuisance and trespass.  Years ago, one of my exam questions featured a cross-boundary invasion of Kudzu (which I described and illustrated with a photo for the benefit of the non-Southerners in my class; see http://en.wikipedia.org/wiki/Kudzu).  I was reminded of that question by a recent case, which I've summarized for a bimonthly column that I write for the ABA magazine, Probate & Property:

  • TREES: Tree owner has no obligation to trim encroaching branches or eliminate encroaching roots.  Roots from neighbors' trees, growing along the property line, caused $61,000 in damage to the foundation of a house.  After discovery of the damage, the neighbors cut the trees down, but the homeowners brought an action for damages based on trespass and nuisance.  In a case of first impression for Oregon, the court held for defendants.  The court recognized a split of authority with respect to nuisance liability.  In some states, a landowner who negligently allows roots or branches to damage a neighbor's property is liable.  In other states, a landowner is absolutely immune; the injured owner's only recourse is self-help (cutting the branches or roots himself).  The court failed to resolve this issue for Oregon because the homeowners had not alleged culpability or negligence.  The court explained that the lack of fault also meant the tree owners had not committed a trespass. Carvalho v. Wolfe, 140 P.3d 1161 (Or. Ct. App. 2006).

http://lawprofessors.typepad.com/property/2006/12/tree_law.html

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Comments

This is very cool. It reminds me of one of my first posts on this blog:

http://lawprofessors.typepad.com/property/2005/10/weeds_as_nuisan.html

It still seems to me that non-native invasive species should be treated differently than other plants.

Posted by: Ben Barros | Dec 7, 2006 2:54:32 PM

I found this post while searching for an answer to another question. Do I have the right to cut down dead branches from a tree that is on my property but the branches extend over my neighbor's property?

Posted by: Kathy | Nov 3, 2010 3:20:22 PM

i have a red wood tree by my drive way and it cause damage to my roof can i have it cut down plus the drive way is messed up from the tree

Posted by: nathan davis | Apr 12, 2011 8:06:33 PM

It sounds as if others are having the same problem that I have. Mine is with 3 cottonwoods that are 20- 40 feet from the corner of my house and have caused damage.

The very first thing you people should do is get estimates of any damage or impending damage, write your neighbor a CERTIFIED letter asking for relief, wait the given time and then sue. Small Claims Court is a good start. If the tree owner is put on notice of damages, then he is guilty of negligence and you can trim the tree or roots, fix the damage and he will have to pay for both. If there isn't SENSIBLE damage from the trees to your property, then you can trim them, up to the property line.

I suggest you get Nolo's book entitled 'Neighbor Law". It's a good place to start and I have found it very helpful.

Posted by: Lois Wallace | Sep 5, 2011 8:19:55 AM

Am I responsible for the limbs of my nieghbors tree that overhang on my property or is he responsible to cut them. There are some that are getting close to my house

Posted by: rich | Aug 17, 2012 5:15:28 PM

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