Trees Outgrowing The Yard?
By Michael A. Inman, Esq. of Inman & Strickler, PLC
Let’s talk trees....or more specifically - encroaching tree limbs. Many of you have encountered the issue of the rights of property owners to cut off or trim limbs of neighbors trees and/or the damage resulting from a limb (or entire tree) falling from neighboring property causing damage to property on the other side of the property line. The general rule in Virginia is that you may trim any portion of a neighbor's tree that crosses the property line onto your property. But what about roots that are damaging your driveway or limbs that are very high and threaten to cause serious damage if they fall due to their nearly dead condition? Fortunately, last month the Virginia Supreme Court came out with a new decision with a new rule about damage to neighboring property by tree roots and limbs. Below is a summary of the case for your reading pleasure, but the bottom line is that the court says that encroaching trees and plants can be regarded as a nuisance when they caused actual harm or posed an imminent danger of actual harm to adjoining property. In those cases, the owner of the tree or plant not only could be held responsible for harm caused to adjoining property, but he could be required to cut back the encroaching branches or roots that constituted a nuisance. In other words, an injunction was an available remedy. In fact, the Supreme Court noted that requiring the owner to cut off the invading roots and branches, with an award of damages, might not afford an adequate and permanent remedy, so that requiring complete removal of the tree could be required. Fancher v. Fagella, Virginia Supreme Court, Sept 14, 2007 – Encroaching trees can be found to be a legal nuisance, and their owners can be required to cut back branches and roots and pay damages where they have failed to do so causing harm to the neighboring property. The Supreme Court had before it two neighbors, who owned adjacent townhomes in Fairfax County. A sweet gum tree grew on Fagella's property, about two feet from a retaining wall that divided the properties. Fancher filed suit against Fagella in the Circuit Court of Fairfax County, alleging that the tree was a noxious nuisance, that its root system had damaged and displaced the retaining wall between the properties, displaced the pavers on Fancher’s patio, caused blockage of his sewer and water pipes, and impaired the foundation of his house. Fancher also complained that the tree's branches hung over his roof and deposited leaves and gumballs onto his roof and gutters. He claimed that he had tried to repair the damage to the retaining wall and the rear foundation of his house and to cut back the overhanging branches, but these steps were ineffectual because the tree and its root system continued to expand. Fancher sought an injunction requiring Fagella to remove the tree and its invading root system entirely. He also sought an
award of damages to cover the cost of restoring the property to its former condition. Based on a 1939 Virginia Supreme Court case, Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939), Judge Keith in the Circuit Court determined that equitable relief was not available. Consequently, he struck Fancher's count seeking an injunction, but he retained for further decision the claim for damages. The Virginia Supreme Court, relying on an infrequentlyutilized provision of law, allowed Fancher an immediate appeal of this ruling, without his having to wait until the case was fully decided by the Circuit Court. On appeal, the Supreme Court acknowledged that the Circuit Court correctly applied the 1939 case, but it decided that it was time to revisit the old rule. The Supreme Court reviewed four basic approaches that various courts had taken when dealing with similar cases. The Court analyzed the reasoning behind the four approaches and decided, at least when dealing with neighbors in non-agricultural areas, that the Hawaii Rule was appropriate. The Supreme Court held that encroaching trees and plants were not nuisances just because they cast shade, dropped leaves, flowers, or fruit, or happened to encroach upon adjoining property. However, encroaching trees and plants could be regarded as a nuisance when they caused actual harm or posed an imminent danger of actual harm to adjoining property. In those cases, the owner of the tree or plant not only could be held responsible for harm caused to adjoining property, but he could be required to cut back the encroaching branches or roots that constituted a nuisance. In other words, an injunction was an available remedy. In fact, the Supreme Court noted that requiring the owner to cut off the invading roots and branches, with an award of damages, might not afford an adequate and permanent remedy, so that requiring complete removal of the tree could be required. The Supreme Court carefully qualified its holding by clarifying that in some cases no duty existed on the owner's part to protect his neighbor’s land from damage caused by the tree. For example, the Court stated that it clearly was unreasonable to impose such a duty on the owner of historically forested or agricultural land. In the case before it, however, where the parties lived on adjoining residential lots, the duty existed. The case was sent back to the Circuit Court for further proceedings.