Is my neighbor financially responsible for the damage a tree on his property is causing my driveway?
Full Question:
Answer:
A landowner has a duty to prevent nuisances which might
adversely affect the property of an adjoining landowner. A nuisance is a
substantial interference with the right to use and enjoy land, which may
be intentional, negligent or ultrahazardous in origin, and must be a
result of a defendant's activity. If a nuisance interferes with another
person's quiet or peaceful or pleasant use of his/her property, it may
be the basis for a lawsuit for damages and/or an injunction ordering the
person or entity causing the nuisance to stop or limit the activity.
Abatement of a nuisance may involve elimination of a nuisance by
removal, repair, rehabilitation or demolition. Liability to an
adjoining landowner for injuries resulting from the improper use of
one's property has been founded upon the legal theory of nuisance.
The encroachment of a tree on the land of an adjoining landowner causing
damage could be held to be a nuisance and result in damages against the
landowner on which the tree was located. A landowner is generally held
to the duty of common prudence in maintaining trees on his or her
property in such a way as to prevent injury to his or her neighbor's
property. Encroaching trees and plants may be regarded as a nuisance
when they cause actual harm or pose an imminent danger of actual harm to
adjoining property. In such a case, the owner of the tree may be held
responsible for harm caused by it, and may also be required to cut back
the encroaching branches or roots, assuming the encroaching vegetation
constitutes a nuisance. Real damage must be shown to result from the
encroaching tree and leaves.
Generally, however, in cases where trees belonging to one property owner
fall on and damage or destroy adjacent property, the tree owner is only
responsible for damage if some failure to maintain the tree contributed
to the damage. If the damage was solely the result of a thunderstorm or
act of God, the tree owner will not be responsible, as the damage could
not have been foreseen. If a tree limb appeared precarious and the owner
failed to maintain the tree after warnings, the owner may well be
responsible for resulting damage when a storm causes the limb to fall.
If, however, the tree was well maintained and a storm causes a tree limb
to crash into a neighbor's roof, the tree owner is not responsible. If
the tree owner allows the tree to grow so that it uproots the fence, it
would be considered an encroachment onto the adjacent property. In that
instance, the tree owner would be required to remove the offending tree.
A boundary tree is one planted on the boundary line itself and should
not be removed without mutual agreement. Leaves which fall off and end
up on adjacent property are considered a natural occurrence and are the
responsibility of the landowner on whose property they ultimately come
to rest.
Property owners in every state have the right to cut off branches and
roots that stray into their property, in most cases this is the only
help that is provided by the law, even when damage from a tree is
substantial. A property owner who finds a neighbor's tree encroaching
must first warn or give notice to the tree owner prior to commencing
work and give the tree owner the chance to correct the problem. If the
tree owner does nothing, the tree can still be trimmed. As a general
rule, a property owner who trims an encroaching tree belonging to a
neighbor can trim only up to the boundary line and must obtain
permission to enter the tree owner's property, unless the limbs threaten
to cause imminent and grave harm. Additionally, the property owner
cannot cut the entire tree down and cannot destroy the structural
integrity or the cosmetic symmetry and appeal of a tree by improper
trimming. Local laws should be consulted for applicable requirements in
your area.