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Saturday, September 15, 2007

Changes in Tree Law

Thanks to Carl Christensen for this story from the Washington Post about the Virginia Supreme Court's decision to change its law regarding neighbors and trees.

In the suburbs, there are few issues that can cause as much rancor and neighborhood discord as a deep-rooted, mature tree that has no regard for the neat boundaries of a property line.

Who pays if your neighbor's tree damages your house?  Yesterday, the Virginia Supreme Court weighed in on the contentious issue with a decision that overturns a nearly 70-year-old precedent. Now, for the first time, homeowners can sue to force a neighbor to cut back branches or roots or take out the tree altogether if it poses a risk of "actual harm" or an "imminent danger" to their houses, the court ruled. Tree owners can now be held liable for any damage caused by the tree. ...

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 new] rule, modeled after a 1981 case in Hawaii, says that a neighbor can't sue a tree owner for the little annoying things -- "casting shade or dropping leaves, flowers, or fruit." But it's a different story if the tree becomes a nuisance. The owner of a nuisance tree "may be held responsible for harm caused to [adjoining property], and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance," the court said.

Sounds like a fabulous topic for a student note!

Alfred L. Brophy
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Comments

In a Washington Post article by Marc Fisher, a summary is presented of the Virginia Supreme
Court feview of the Fancher vs Fagella case and the subsequent revised opinion that an injunction can be granted to a plaintiff to have his neighbor remove or cut back a "nuisance tree."

The review doesn't affect the Virginia rule on allowing "self-help" to correct a vegetation problem.

Marc Fisher points out the the urbanization of Virginia is the reasoning behind the revision of the the orginal Fancher V Fagella ruling.

I live in a rural area where the homes in my area are zoned agricultural. Each residence is on a large parcel of land, but one neighbor insists on being able to exercise "self-help" on any neighbor's tree with branches extending over on his property. He has exercised "self-help" in a manner to offend each affected neighbor. We each received a letter from his lawyer after the tree trimming occurred stating this neighbors right to do so.

Some of the trees are stately old oak trees. What extent does "self-help" enable a neighbor to do what he wants....to any tree on a neighbor's even when the tree is 30-100 yards from any structure on his property and offers no threat to any structure. This neighbor has even threatened to cut down a beautiful oak on the boundary between our property if I submit any more complaints to the county planning and development office about the problems with water flowing onto my property from his acre parking lot.

I need a good land use lawyer but so far they have all said I can't do anything because the county has no laws that he has broken.

Posted by: Jerry L. Green | Oct 1, 2007 10:52:09 AM

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