We all have something we think of as off-the-scale good. I have several. One of them is trees. I have planted them, moved them, and fretted over them when they died. I have not yet talked to them, but I do listen from time to time.
But what happens when trees go bad? Specifically, we are coming into the hurricane season and the trees in your yard may come down. If they come down in your own yard, they are your legal responsibility. But what if they donít? If your tree falls on your neighborís property, whose job is it to get it up? Even if it remains standing, if its limbs go across the property line, what are his rights to cut your tree?
This article addresses adjacent property rights regarding trees. Remember that I have said in past articles that a good relationship with your neighbor is one of your most important assets. I promise you that in the end, a good relationship with your neighbor is more important than a great relationship to a tree. But my hope is that you can accommodate both. We want your trees to be happy too.
The legal premise is that your land is yours to the center of the earth and into the sky. One of the legal characteristics of ownership is the right to exclude others and their trees. If limbs protrude across the property line and you donít want them there, you have the right to cut the limb where it enters your land. If the entire tree falls over, you have a right to cut the tree and remove it. Technically, while Iíve never seen the issue come up, the tree probably becomes personal property when it is severed from the land. If it falls from your neighborís land, the tree is personal property that belongs to your neighbor. He should be the one primarily responsible to cut it, and itís his firewood if he chooses to claim it. If he doesnít, go for it!
If a falling tree does damage to the property of another, the fact of it falling is generally considered an act of God ó not something that could have been prevented, and not something for which an adjacent property owner is responsible. However, an obviously diseased tree, or one that is leaning in a way that can be predicted to fall over, is not an act of God when it falls. Thatís on you.
There are two legal rules that apply. One is called the Massachusetts Rule, which is basically an ďevery man for himselfĒ rule. In Massachusetts, there is absolutely no liability for a fallen tree, regardless of where it falls, when, or why. The other view is the Hawaii Rule which makes an owner responsible for the damage done by his own tree, but only if he can reasonably predict that the damage was likely to be caused by the tree and that the tree was likely to fall over.
Florida has not clearly adopted either rule. But in a 2007 case, the Florida Supreme Court adopted a ďforeseeable zone of riskĒ analysis from which you should assume that Florida will follow the Hawaii rule.
The lesson from the above is that while God made trees and we should be good to them, we must take them down when they pose a threat to others. If you donít, the neighbor whom Iíve suggested is more important than a tree, may have legal rights.
One final point should be made. If your neighbor owns a diseased or threatening tree and you want it removed, learn diplomacy. You canít trespass to remove it yourself, and you canít, short of a Court Order, force him to remove it. If the neighbor agrees, you could pay to have his tree removed. Otherwise youíll lay awake during a high wind hoping itís blowing his direction.
If you ever have to choose between drinking wine with your neighbor and trimming your oak tree, the tree ought to go.
Only God can make a tree. But you can remove it.
Mike Chesser is a board certified real estate attorney with Chesser & Barr, P.A.