In our ever crowding residential areas, more of us experience the situation in which the limbs of a neighbor’s tree overhang our property line. Most of the time, these limbs do not pose us any concern, but questions do arise as to whether we have the right to prune our neighbor’s trees. In the past,the Virginia rule has been that you could trim the branches of your neighbor’s tree up to your property line. However, the Virginia Supreme Court expanded that long-standing rule when it decided that an owner whose property was damaged by the root system of a neighbor’s tree may be entitled to more relief than simply cutting back the roots and overhanging branches to the property line.

In the case of Fancher v. Fagella, the roots of Fagella’s large sweet gum tree damaged and displaced his neighbor’s retaining wall and patio pavers, blocked his neighbor’s sewer and water pipes, and impaired the foundation of his neighbor’s house. The neighbor, Fancher, also complained that the gum tree’s overhanging branches deposited leaves and other debris onto his roof and rain gutters. Fancher requested that the court order Fagella to remove the tree and its root system because self-help–cutting the overhanging branches–was ineffective due to the gum tree’s growing root system.

Under these facts, the Virginia Supreme Court determined that cutting the overhanging branches to the property line may not be an equitable solution for Fancher because the encroaching tree posed an imminent danger of actual harm to his property. The Court held that although “encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. . . encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.” In such a case, “the owner of the tree or plant may be held responsible for harm caused to [the adjoining property], and may also be required to cut back the encroaching branches or roots.” Therefore, the injured neighbor has two options available: 1) self-help by cutting away the encroaching vegetation to the property line, or 2) court imposed help by suing the owner of the offending vegetation.

In any lawsuit, a trial court must determine whether the encroaching vegetation in this case constituted a nuisance, in other words, whether a homeowner has a duty to protect his neighbor’s land from damage caused by intruding branches and roots. If not, then the neighbor can only trim the branches of the offending vegetation to the property line. Conversely, if the homeowner does have such a duty, the Court can permit the neighbor to trim the invading roots and branches, award the neighbor compensation for his expenses, order the complete removal of the offending vegetation, or make any other equitable award.

Clearly, neighbors can choose a much quicker, and less expensive alternative by civilly discussing the issue and reaching a reasonable agreement without the involvement of the courts. However, the Virginia Supreme Court has provided land owners with a bit more negotiating leverage by expanding the remedies available when vegetation intrudes and causes damage to a neighbor’s property. Review your specific situation with your experienced real estate litigation attorney so you know your options before you take action.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

John Tarley

John Tarley

John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.

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