legal REALTOR Of Joyce Kilmer Hurricane Sandy and Trees

by MAR Staff | Dec 18, 2012
By Robert S. Kutner, Esq. Partner, Casner & Edwards

It has been 100 years since Joyce Kilmer published the poem, “Trees.” It begins with the words: “I think that I shall never see a poem lovely as a tree.” With the arrival of Hurricane Sandy last October, we were reminded of the power of nature and that when a tree falls, it may not be lovely at all. Sandy wreaked havoc on power lines, cars, and homes up and down the east coast.
Trees growing along the boundaries of properties frequently become the source of friction between neighbors. What rights does the neighbor have to take precautions before damage occurs? Questions are presented concerning who will be liable for damage caused by a fallen branch or tree and whether those damages will be covered by insurance. The answers depend upon a variety of factors. While it is not the duty of real estate agents to provide legal advice to buyers and sellers, it will prove helpful to know the ground rules for resolving such issues.
Tree Boundaries
Branches extending across property lines may drop sap, leaves, acorns, and debris on the driveway, car, or house of a neighbor. In Ponte v. DaSilva, a 1983 decision of the Supreme Judicial Court, the Pontes sued their neighbor when Mrs. Ponte fell on the driveway of her home as a result of sap falling from the neighbor’s willow tree. The willow tree stood about four feet from the Pointe’s driveway. Prior to her injury, the Pontes had complained to their neighbor about the tree and had requested that it be removed. Nevertheless, the SJC upheld dismissal of the complaint based on the finding of the trial judge that there had been no negligence of the tree owner.
The rights of every property owner extend vertically as well as horizontally. The owner has the right to everything beneath the surface as well as everything above. If the trunk of a tree is on the land of one person, but a branch extends over the land of a neighbor, the neighbor has the right to trim the overhanging branch. Similarly, the neighbor has the right to remove roots that extend beneath the boundary and onto his land. Despite this rule, it is crucial that care must be taken when trimming branches or cutting back roots of a neighbor’s tree, since doing so may cause damage or death to the tree, leaving the person who caused the harm liable for the damage. The recommended approach is to speak to the tree owner to reach agreement concerning the work.
In O’Malley v. Ruhan, the Appellate Division of the District Court upheld a finding that Ruhan was liable for harm to the O’Malley’s cypress trees, whose branches extended several feet over the property line and served as an aesthetic screen between the homes. Without notice to the O’Malleys, the Ruhans had their landscaper prune the offending limbs back to the trunks of the trees, thus rendering them permanently lopsided. Damages were awarded based on the cost of replacing the damaged trees, rather than limited to the diminished value of the O’Malley’s property.
Attaching Liability
If a tree falls on the neighbor’s property following a hurricane or other storm, a legal dispute may arise concerning responsibility for cleanup costs and liability for damage. As with virtually every other rule of liability, the mere fact that a branch or tree falls onto the property of a neighbor does not create liability of the owner of the land on which the base of the tree is located. For liability to attach, there must be a showing that the tree owner violated a duty owed to the injured neighbor. If an otherwise healthy tree or its branches fall on a neighbor’s land during a storm, the harm may be considered to be an “act of God” for which the owner is not automatically liable for any damage. On the other hand, if the tree had been previously damaged or diseased, it is the owner’s duty to have taken steps to avoid possible harm to others. If the tree owner is shown to have been negligent in failing to care for the tree, the owner will be liable for the harm that due care could have avoided.
Should a tree fall on a neighbor’s property, the absence of negligence in caring for the tree is not an absolute defense to a claim for the cost to remove the fallen tree. After all, the tree remains the property of the owner. It is the owner’s obligation to remove his property from the land of the neighbor.

While it is unlikely that the tree owner will be held liable for damage caused by a tree that falls in the absence of negligence, proof that the owner took affirmative steps to keep the tree healthy is likely to result in the dispute being resolved in his favor. In other words, an ounce of prevention is worth a pound of cure.
The Insurance Branch
Turning to the issue of insurance coverage, if a tree falls on a house, homeowner’s insurance will typically cover repair costs as well as the cost to remove the tree that landed on the house. If, however, the tree falls on the yard, but not on a house or other structure, homeowner’s insurance will generally not cover the cost of tree removal.
Should the tree fall on a car, but not a structure, homeowner’s insurance will not provide coverage. On the other hand, if the owner of the vehicle had purchased “comprehensive” coverage, that auto policy will cover damage to the vehicle, subject to any deductible. Auto insurance, however, will not cover the cost to remove the tree or its branches, even if on top of the vehicle.