Whose Tree is it Anyhow?
Marianne C. Ophardt
Washington State University Extension
Area Horticulture Specialist
What would Robert Frost have said about the controversies some neighbors have with trees that border their properties? After all, he addressed the problems of neighbors putting up fences in his poem, “The Mending Wall.” The truth is that some folks just don’t get along. Some people reasonably take exception to leaves from a tree they don’t own blowing into their yard or dropping into their pool, especially if there is a large volume of leaves that they must clean up and dispose of in some manner. Controversies arise over roots growing into yards and gardens from an adjoining tree, or sometimes the tree gets large enough that it actually grows over the lot line even if it started out on one side of the lot line. Who’s responsible for a tree planted on the lot line? This question can cause quite a bit of acrimony.
There are also increasing numbers of controversies over trees which block panoramic views, especially in Western Washington where housing has become increasingly dense and people pay premium prices for select view lots. Imagine having paid that extra money for your view and then your neighbor plants a tree and it grows up and blocks your view. There are stories about people hiring arborists and having them come and cut off the tops of offending trees while the owners are away. Of course, you can imagine that this causes more than a mild argument. Arborists are finding that they have to be very careful in finding out about who actually owns the tree they are being asked to prune.
It used to be thought that you could do just about anything you wanted to any part of a tree that encroached upon your property... whether it was limbs overhanging your side of the fence or roots causing havoc on your side of the lot line. However, current conventional legal wisdom seems to protect trees from wanton acts by not-so-neighborly neighbors. The following was written for the Washington State Department of Natural Resources “Tree Link” newsletter by Mark C. McPherson, of Hillis Clark Martin, & Peterson, P.S. and appears here with permission.
1. Trees Have a Dollar Value That Can Be Appraised
We all know that trees are pleasant to have around, and that they reduce pollution, add oxygen to the atmosphere, buffer light and noise, and provide welcome shade in hot weather. You may not be aware that there is a detailed appraisal formula that yields dollar figures for trees. The International Society of Arboriculture developed an appraisal method that takes into account a tree's condition, location, species, and other factors to produce a dollar value.
The value may surprise you. In a recent case handled by our law firm in Island County, nine medium-sized alder trees were appraised at almost $4,000. Mature hardwoods such as oak and maple can be worth in excess of $5,000 apiece.
2. Washington Law Allows Treble Damages For Willful Tree Cutting
Washington State in general does not allow punitive damages, but there is an exception for willful tree cutting on someone else's property. The courts have awarded treble damages in cases where tree cutters have failed to make a diligent effort to ascertain the property line. Anyone contemplating tree cutting should be sure to determine their property line before taking down any trees. Anyone whose trees are cut should be aware that the damages may be far more than they imagined.
3. Trees on Boundaries Are Jointly Owned
Suppose you plant a tree on your property, and over time the tree grows into the property line between you and your neighbor? Washington law deems that tree to be jointly owned by you and your neighbor. You cannot cut that tree down without getting permission from your neighbor. Conversely, your neighbor cannot cut down trees on the property line without your permission. An increasingly common situation involved branches or roots that extend from one property onto another property. Washington law provides that these can be trimmed back to the property line. However, recent legal decisions in California and British Columbia have held that a property owner cannot unreasonably damage the health of a tree by pruning back to the property line. The law is becoming increasingly protective of trees, particularly in urban areas. Property owners who damage a tree that appears not to be causing them any harm may have to pay for the damage.
4. Subdivision Covenants Often Pit Tree Owners Against Those Who Want To Preserve Views
As property values go up, the value of views increases. This has caused some property owners in certain subdivisions to sue to remove trees under restrictive covenants. Covenants often contain provisions that are protective of views. Even if covenants do not contain a specific view covenant, they may prohibit "noxious" or "undesirable" uses, which some subdivisions have interpreted to include view-blocking trees. These disputes usually depend on the unique facts in each situation, but property owners who are protecting their views have turned to covenants to force neighbors to prune or remove trees.
The increasing value of views has also led some subdivisions to undertake "view zoning." View zoning attempts to plan for specific vegetation in specific areas. Large trees may be allowed in certain areas but prohibited in designated view corridors. This preserves the visual and ecological appeal of graceful mature trees while limiting the haphazard impact on views.
5. You May Be Responsible For Hazardous Trees on Your Property
Are you liable if a tree on your property falls and injures someone? This depends on whether you knew or should have known that the tree posed a hazard. If the injury was due only to an act of God, such as a lightening bolt striking a safe, healthy tree, you will probably not be liable. But if your tree was diseased or had dead branches, a court may find that you should have known that the tree was hazardous. This is particularly the case in urban areas where the risk of injury is greater than rural areas.