09/18/2020
FL LAW ARTICLE ON FALLEN TREES
Here is some helpful information and not to be deemed as legal advice to any person or Association.
With all of the fallen and leaning trees resulting from the Hurricane, a question keeps coming up again and again.
My neighbor’s tree limbs are hanging over my property or have fallen onto my property. Can I make the neighbor cut the tree down, cut it up and clean the tree debris off my property?
Well usually the answer is no unless the tree is in danger of falling over into your yard.
When it comes to a tree, whose trunk is on a neighbor’s property but whose branches reach over the property line onto your property, the law says you can cut back the branches over your property line as long as you don’t kill the tree in doing so.
Now, if the storm knocked over your neighbor’s tree onto the ground and put lots of branches and even part of the tree trunk on your property, for some reason many homeowners believe that they can force their neighbor to remove “their neighbor’s” tree off your land. This is usually not the case.
You will be responsible for removing all that portion of the tree on your property and your neighbor will have to remove the rest of the tree lying on his property.
The neighbor will not be responsible for any tree damage caused to your property as a result of it falling from the storm.
A caveat would be if the tree was in ill health or dead before the storm and your neighbor should have removed it when it became unhealthy. You could then argue that the neighbor was negligent in not removing the tree or treating it once it become seriously ill.
What is the liability for over-hanging branches and encroaching roots?
Branches and roots frequently extend across property lines. Whether a branch or root from a tree on an adjacent landowner's property is the responsibility of the landowner with the tree located on his or her property or the landowner of the property to which the branches overhang or roots encroach depends upon the branches or roots themselves. If the branches or roots are healthy, then the landowner with the tree located on his or her property is not liable for damage caused by the branches or roots. The adjoining landowner may, at his or her own expense, trim back the branches or roots as he or she desires up to the property line. If the branches are dead, however, then the landowner with the tree located on his or her property may be responsible and could be liable for damages caused by the branches (1 Fla. Jur 2d Adjoining Landowners section 8 [2014]).
In Scott v. McCarty, a property owner brought action against a neighbor alleging that overhanging branches and roots from the neighbor's tree caused damage to his property (41 So.3d 989, 989 [Fla. 4th DCA 2010]). The Court affirmed the trial court's dismissal with prejudice of appellant's complaint for damages based upon Gallo v. Heller, 512 So. 2d 215, 216 (Fla. 3d DCA 1987), which explained the common law rule:
[A] possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner's own expense, any encroaching tree roots or branches and other vegetation which has grown onto his property.
Scott, 41 So. 3d at 989 (quoting Gallo, 512 So. 2d at 216) (alterations in original).
The Scott court prescribes the adjoining property owner engage in self-help to combat encroaching vegetation by suggesting the landowner resort to trimming. By doing so, this leaves an open question as to what other methods of self-help are available. It is not clear whether the adjoining property owner may spray encroaching vegetation with herbicide such as glyphosate, which could translocate and kill the entire plant. Alternatively, the adjoining property owner may wish to use a stump grinder to destroy roots that have encroached onto his/her property. It is not clear whether these or other self-help methods are permitted and whether employing them would create a cause of action against by the encroaching landowner against the encroached landowner.
Which landowner is responsible for dead or live trees falling on adjoining property?
The health of the tree may determine which landowner is responsible for damages to property (A secondary source called “Florida Jurisprudence” provides that where a dead tree falls on an adjoining property and damages that property owner's home, the landowner who owns the property where the tree originally was located is responsible for damages (1 Fla. Jur 2d Adjoining Landowners section 8 [2014]). Alternatively, Florida Jurisprudence provides that where a live tree falls on an adjoining property and damages that property owner's home, the adjoining property landowner is responsible for damages. Put another way, consider Landowner A (property owner of tree) and Landowner B (adjoining landowner). If Landowner A's dead tree falls on Landowner B's property, Landowner A is responsible for damages. Conversely, if Landowner A's living/live tree falls on Landowner B's property, Landowner B is responsible for damages.
However, there is no case law discussing the live/dead tree distinction discussed in Florida Jurisprudence. Florida Jurisprudence is not binding authority and a court may disregard it when adjudicating a case. Under a negligence theory, one could argue that a dead tree is a hazard that could cause foreseeable damage to a neighboring property. In other words, it is foreseeable that a dead tree will fail (especially during a storm), which creates a common law duty of care to remove the dead tree to in order to prevent damage to neighboring property. Under this theory, the duty to remove trees may not be limited to dead trees, but may also include live trees with a high risk of failure such as trees with co-dominant leaders and girdling roots. As of this writing, there is no case law on point discussing the duty owed by landowners to remove dead/hazardous trees to prevent damage to neighboring landowners. It will be up to future courts to decide this point.
Summary
A landowner is not liable to the adjoining property owner for an alleged nuisance caused by overhanging branches and roots from a tree on his or her property; however, the adjoining property owner is legally entitled to trim back, at the adjoining owner's own expense and only up to the property line, any encroaching tree roots or branches and other vegetation that had grown onto his or her property. If the branches or roots are dead, or a dead tree falls onto the adjoining landowner's property, then the landowner of the property where the tree was originally located may be responsible. If a live tree falls onto the adjoining landowner’s property, then the adjoining landowner is responsible for any damages.
Further Information
Circular 1242, Handbook of Florida Fence and Property Law http://edis.ifas.ufl.edu/TOPIC_BOOK_Florida_Fence_and_Property_Law
Lawsuits related to Fallen Trees:
If you file a lawsuit to receive compensation for a fallen tree, you must prove that the tree fell because it was damaged or diseased. Trees that fall as the result of natural disasters, including storms, are not the fault of your neighbor. Likewise, your neighbor cannot expect you to pay for damages caused as the result of a storm that knocks down a tree you own. You will likely be responsible for the cleanup costs but not any damages.
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