Your Neighbor's Dead Tree
There is an underlying legal theory known as the "ad coelum doctrine"—which in simple English means that ownership of property extends to the edges of the universe, upward as well as downward. In other words, if you own land, your ownership rights extend to the center of the earth as well as clear up into the sky. So, therefore, it is clear that when a neighbor's tree extends over your property line, that tree is violating your airspace rights. The courts throughout this country have made it clear that in these situations you can exercise self-help. This means that you have the right to trim the branches, or remove the tree roots, without the neighbor's consent, but only to your property line. Usually, in other instances, courts frown upon self-help. For example, in most states, a landlord cannot merely throw a tenant out and change the locks. Thus, self-help is permitted in all jurisdictions, but only to the property line. And unless you can prove that there is a dangerous condition on your neighbor's property that cannot be corrected by self-help to the boundary line, you will not be successful if you take your neighbor to court. In the scenario you pose, it appears that a dangerous condition does, in fact, exist.
If you do decide to engage in self-help, you should first obtain professional guidance from a recognized expert—called an "arborist." Then advise your neighbor of your plans. While this may not be required legally, it certainly makes common sense. After all, these are your neighbors. Give your neighbor a reasonable period of time in which to respond.
I also recommend that you take pictures on a before-and-after basis, so that if there are any questions as to what you did, you will be able to prove what existed before you engaged in self-help, and how you corrected the problem on your own—but only to the property line.
As mentioned earlier, if there is a dangerous condition on your neighbor's property that cannot be corrected by self-help to the boundary line, you may be successful if you take your neighbor to court. There is a strong trend across the country toward making tree owners legally responsible for damage caused by unsound trees, if the owner knew or should have known that the damage was likely [see Israel v. Carolina Bar-B-Que Inc., 292 S.C. 282 (Ct. App. 1987)].
The legal theory is that the owner, by not acting to prevent the harm, was "negligent." Negligence is conduct that is unreasonably careless under the circumstances. A failure to act can be negligent if a reasonable person would act under the circumstances. For example, if a reasonable person would remove a dead tree limb after learning it threatened a neighbor's home, then a neighbor who does nothing in the same circumstance may be negligent.
In most states, landowners in urban and residential areas are legally liable for damage caused by an obviously unsound tree. That means that if a rotten limb or dead tree itself falls on a neighbor's property, and the owner knew or should have known of the danger, the neighbor can sue the tree owner for compensation for the damage.
When should a tree owner know a tree is endangering the neighbor? If the question goes to court, a judge will look at what should have been obvious to the owner: lack of foliage, for example, which signals a dead limb or tree, or a tree that is leaning precariously to one side.
In all states, the rule is that in a rural area, a tree owner is liable for harm caused by the tree only if he or she actually knew of the danger and failed to prevent the damage. Even when there is obvious decay, an owner who is unaware of it is not liable. Rural owners are not expected to routinely inspect acres of trees for potential danger.
If you live in a rural area and believe a neighbor's tree is endangering you or your property, notify the neighbor in writing. An expert opinion delivered to the owner is the best possible notice to be sure the owner realizes the danger.
Before a neighbor can sue, he must demand compensation from the tree owner. Because nobody wants to go to court, just telling the owner about the problem and what the law is usually results in a solution.
Keep a copy of the notification letter to show the judge; it explains your case in a nutshell.
Further, someone who files a lawsuit against a tree owner must prove to the court all of these elements:
The tree that caused the damage belongs to the person being sued.
- The tree owner knew the tree posed danger (or, in an urban area, should have known) but didn't take reasonable steps to prevent it.
- The tree (or its branches) damaged the neighbor's property.
- The damage cost money to repair.
- The neighbor is entitled to compensation for all repair costs, including money spent to fix or clean up the property. The court will want to see proof (receipts) of amounts spent due to the tree and written estimates for work yet to be done.
If the property can't be fixed, the neighbor is entitled to the difference in the property value caused by the damage. A real-estate appraiser can estimate the amount.