The trees have begun their annual transformation and the scent of pumpkin spice is starting to drift through the air. Yes, we have made it to autumn.
While many of our favorite autumn activities have been postponed, transposed, or flat-out canceled, there is one thing that will continue without delay: falling foliage. Indeed, the inevitable descent of leaves may provide some fall fun for your children and pets, but it can also lead to neighborly feuds such as a neighbor’s tree dropping leaves on your yard or your tree falling and smashing his car. In light of the pent up frustrations that many have due to being inside for so many months, even a slight property line dispute can result in verbal disputes, confrontations, and litigation.
In light of disputes involving trees, we have assembled ten tips:
- Ownership of Trees: In Maryland, “the owner of the tree’s trunk is the owner of the tree[.]” Melnick v. CSX Corp., 68 Md. App. 107, 115 (1986), aff’d, 312 Md. 511 (1987). That means if the tree trunk straddles the line between two properties, each property owner owns the tree as a tenant in common. This may give each “owner” property rights associated with the tree and possibly the right to remove the tree.
- Abating a nuisance on someone else’s land: If proper conditions are met, Maryland law may permit the entry upon another’s property to abate a nuisance. See Maryland Telephone & Telegraph Co. v. Ruth, 106 Md. 644 (1907). In Ruth, the Court of Appeals agreed that a defendant had the right to cut down a pole placed on his half of an alley, and that the owner of the pole could not complain of injury to the pole. See id. at 360-61. Needless to say, the law of nuisance involving trees and vegetation is nuanced. At a minimum, a property owner that wants to engage in self-help cutting, even of a nuisance, should attempt to obtain consent from the adjoining landowner before entering their property to cut down a tree owned by that adjoining landowner.
- Falling Branches: Frequently, a tree owned by a property owner may have a canopy that extends over the property of another. In such situations, Maryland courts have generally recognized a right to self-help extending where the overhanging branches are a nuisance or frustrate the use of property. See Melnick v. CSX Corp., 312 Md. 511, 521 n.10 (1988); see also Turner v. Coppola, 102 Misc.2d 1043, 424 N.Y.S.2d 864, 867, aff’d, 78 A.D.2d 781, 434 N.Y.S.2d 563 (1980). Unless permission is obtained of the owner of the tree, the cutback of branches can only be to the limit of the property line.
- Statutes Related to Merchantable Trees and Timber: Under the Natural Resources Article of the Maryland Annotated Code, the owners of “merchantable trees or timber on the land” may have a right of action where such trees or timber are cut or destroyed without the written permission of the owner. Md. Code Ann., Nat. Res. § 5-409. If such damage occurs, the owner may seek “the value of the trees or timber cut, burned, or otherwise injured or destroyed” and which may include “the costs of any surveys, appraisals, attorney fees, or court fees in connection with the case.”
- Non-Merchantable Trees or Bushes: Trees that are “non-merchantable” are not subject to protection under Section 5-409 of the Natural Resources Article. Similarly, bushes are not likely to be within the terms of the statute and may not be protected. Hydrangeas do not count as trees under the statute.
- Get off my lawn! If you believe a neighbor is going to trespass onto your property to cut, burn, or otherwise destroy trees, you may be entitled to injunctive relief. A court may enjoin your neighbor from making questionable cuts to your trees.
- If a tree falls on your neighbor’s property, will your neighbor make a sound? So what happens if your tree does, in fact, fall on a neighbor’s yard? Well, generally, in Maryland, the cost of removing the tree and repairing any property damage falls to the owner of the property that sustained the damage. The adjoining landowner may sue for damage caused by the downed tree, and the law as to whether such suit will be successful is dependent upon a variety of factors. Homeowner’s insurance may cover the tree damage to your neighbor’s property and removal of the fallen tree.
- Suburban and Rural Trees Falling onto Roadways: Trees have a mind of their own when they ‘decide’ where to fall. Sometimes they fall on roads and sometimes they fall on cars traveling on streets. Owners of trees are not usually liable for trees falling on roadways unless the fallen tree constituted a “danger to lawful users of abutting public roads and the owner is aware or should be aware of the tree’s deteriorated condition.” Hensley v. Montgomery County, 25 Md. App. 361, 364 (1975).
- Urban Trees: Urban landowners are more likely to be held liable for falling branches than suburban or rural landowners. The Hensley Court, supra, noted that urban landowners generally have a duty to use due care to protect others from damage caused by dying trees. While the extent of this duty remains unclear, it is in the best interest of an owner of urban property to check the property to determine tree health. Whether a tree is located in an urban or suburban area may be up for debate.
- Talking over the border line. As a final point, we want to suggest that where there is a dispute concerning trees, vegetation or property lines, you should address the issue, politely, with your neighbors. Courts often see these types of disputes as minor annoyances that should be dealt with by face to face discussions, rather than with litigation. Indeed, Maryland law encourages landowners to deal with tree and leaf-related disputes on their own. Additionally, talking to your neighbor costs a lot less than having lawyers do the talking. And, hey, you might have something in common. At a minimum, you both can complain about COVID-19.
As we enter the fall season, remember this advice and do your best to be a good neighbor. This year has been hard on all of us. Together, we can avoid autumn tree, bush and property line disputes through communication and vigilance. Of course, if you cannot resolve a dispute through calm discussion, contact a lawyer that is familiar with trees, bushes, fallen branches and shrubs.
Ms. Lambert has over 35 years of experience in handling complex commercial litigation and insurance matters. Ms. Lambert has worked on national class actions, significant litigation and regulatory matters for Fortune 500 companies. She has also assisted small and mid-sized companies and business executives with contract, real estate, liability assessment and commercial disputes that needed to be resolved quickly and efficiently. Ms. Lambert is best known as an attorney who knows the field of insurance. She has represented insurers, policyholders, and insurance producers in disputes both in court and before the Maryland Insurance Administration.
Ms. Lambert is the firm’s Co-Liaison for Harmonie, a national network of high quality law firms that serve the special needs of the risk industry, and was recently appointed to Harmonie’s Board. She can be reached by phone at 410-339-6759 or email firstname.lastname@example.org.
Mr. Campbell has close to 20 years of experience as a general litigator. He has an active litigation practice primarily in complex commercial and general litigation matters in Maryland state and federal courts as well as other jurisdictions in which he is admitted pro hac vice. He has extensive appellate, arbitration and trial experience and notably has a long and successful motions track record including successful motions for summary judgment and dismissal for his clients. As part of his practice, Mr. Campbell is assigned to represent insureds by national insurance carriers in premises liability, tort defense, automobile and trucking cases, and government liability matters. He has participated in the prosecution and defense of claims against Maryland insurance producers. Mr. Campbell can be reached at 410-769-6140 and email@example.com.