An ongoing source of frustration between neighbors are trees. Usually the tree is clearly on one neighbor’s property, but its branches cross the property line. An alternative is that the tree’s roots cross the property line.
While the offending branch may be more of a nuisance than a problem, the roots can damage sidewalks, foundations, or pipes, necessitating thousands of dollars in repair costs.
In Washington, the State Supreme Court appeared to have addressed what a neighbor’s rights are when a tree’s branches or roots cross the property line in the case of Gostina v. Ryland, holding that:
“The overhanging branches of a tree, not poisonous or noxious in its nature, are not a nuisance per se, in such a sense as to sustain an action for damages. Some real, sensible damage must be shown to result therefrom…. One adjoining owner cannot maintain an action against another for the intrusion of roots or branches of a tree which is not poisonous or noxious in its nature. His remedy in such case is to clip or lop off the branches or cut the roots at the line.”
Thus, unless the adjoining owner could show real damage from the offending root/branch – say a broken pipe, their remedy was to lop off the branch/root at the property line.
While not stated in the Gostina opinion, most attorneys will caution a client against the self help remedy of cutting the trespassing branch/root if it will damage the tree.
But what if it isn’t a branch or root that is extending onto your property, but rather the trunk of the tree itself? This fact pattern was addressed by the Washington Court of Appeals in the case of Happy Bunch, LLC, v. Grandview, LLC. This case involved a dispute surrounding 12 mature trees that stood on or near the boundary line. Some portion of 10 straddled the property line. In this situation, the court held that:
“A tree, standing directly upon the line between adjoining owners, so that the line passes through it, is the common property of both parties, whether marked or not; and trespass will lie if one cuts and destroys it without the consent of the other.”
The ruling in Happy Bunch is problematic as the location of a tree may impact how property may be used. In Happy Bunch, the adjoining property owner needed to place approximately 4 feet of fill on his property to meet city code requirements in connection to his planned development. The property owner did not believe that he could meet this fill requirement without constructing a retaining wall, which would have been challenging, possibly impossible, without removing the trees. Unfortunately for the adjoining owner, he resorted to self-help – having the trees removed.
What is the take away from Happy Bunch and Gostina? The simplest answer is that good fences make good neighbors, as does knowing where the property line lies and ensuring that it is clearly marked. Once you know where your property line is at, you may take action if you see your neighbor start to plant a tree too close to the line. You may also lop off branches and roots when they first start to cross the line, thereby minimizing the impact to the tree. Although, special care should be taken before you pull out the shears and unless you know with certainty that your actions will cause no harm to the tree, you should call in an arborist.
Prior to that, the best course is to enlist your neighbor’s help and cooperation when dealing with the problem tree, and hopefully convincing your neighbor to undertake the pruning themselves.
This blog post is offered for general information and educational purposes only. It is not offered as legal advice and does not constitute legal advice or opinion. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-to date. You should not act or reply upon the information in this post without seeking the advice of an attorney.