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  HOME > GARDENING COLUMNS > 2003 > 'CHAT BEFORE YOU CHOP' NEIGHBOR'S OVER-HANGING BRANCHES

  'CHAT BEFORE YOU CHOP' NEIGHBOR'S OVER-HANGING BRANCHES

Branches from the neighbor's huge willow tree drooped over into her yard, smothering her shrubs and littering her car, garage and driveway with twigs and leaves.

I emailed her some articles on homeowner rights relative to neighbors' trees and informed her that she had a legal, not a horticultural, problem.

Judging by the number of phone calls I've received over the years, contending with invading limbs and roots of neighbors' trees is a bigger problem than most realize, particularly in established neighborhoods where trees were planted decades ago and now tower above rooftops and adjoining lots.

What's a homeowner to do when a neighbor's tree invades "your space?" What are your rights when a neighbor's 50-year-old elm roots cause your sidewalk to buckle? If your neighbor's apple tree produces juicy, red apples that hang on your side of the fence, can you pick them?

The one thing you shouldn't do when a neighbor's tree interferes with your space is to take the law into your own hands.

"The law in Minnesota can answer some of your questions," explains Lorrie Stromme, an attorney and University of Minnesota Extension Service master gardener and tree care advisor, adding that the law isn't always clear on every issue.

To determine whose tree it is, Stromme says to follow the trunk; the location of the tree trunk determines who owns the tree, including the branches, flowers, fruit, and all. The tree is also your neighbor's responsibility if a weak limb blows down in a windstorm, crushing your garage. Stromme adds that your neighbor can decide to cut down the tree that partially shaded your yard and you have no recourse against your neighbor for suddenly exposing your shade-loving perennials to all-day sun.

Trees that grow on the boundary line between two properties have special rules, according to Stromme. In Minnesota, a tree is a boundary tree if it was planted jointly or treated as common property by agreement, acquiescence, or course of conduct. For example, adjoining owners who split the costs of pruning and maintaining a boundary tree or hedge would probably be considered co-owners of the tree or hedge. So, when a broken limb or a tree disease becomes a problem, the co-owners share responsibility for fixing the problem.

Branches that overhang your property or tree roots that push up a sidewalk or clog a sewer are considered a nuisance. A nuisance in Minnesota is defined as "anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property."

One of Minnesota's leading cases on nuisance trees involved a Minneapolis homeowner who planted an elm tree within 15 inches of the property line. Over the next 26 years, the tree grew to 30 inches in diameter and 75 feet tall. The trunk grew across the boundary line, pushing the fence out of alignment. The roots extended into the neighbor's yard and caused the sidewalk to tip toward the house, resulting in a drainage problem in the neighbor's basement. The court found that the tree was not a co-owned boundary tree but was a nuisance, because the tree roots obstructed the neighbor's free use and enjoyment of their property.

The neighbors sued for monetary damages and an injunction to prune the roots or remove the tree. Experts for both sides acknowledged that corrective action to restore the grade would damage the roots and either kill the tree or make it dangerously unstable. The court ordered the tree cut down because the alternative -- severe root pruning -- would have weakened the tree or caused the tree to die, endangering the neighbor's home if the tree blew over in a windstorm.

Stromme says that Minnesota property owners have the right to use "self-help" to prune branches or roots of a neighbor's tree that encroaches onto their property but that the self-help requires discretion. Guidelines for self-help include:

Prune only up to the boundary line, at your own expense.

Don't trespass. Get permission to enter onto the neighbor's property to do the pruning, unless the encroaching branches or roots threaten to cause imminent harm to your property.

Don't cut down a tree whose trunk is located on the neighbor's property, even if the branches stray onto your property.

Maintain, don't destroy. Don't jeopardize the health of the tree or cause foreseeable injury. For example, pruning an oak tree from April through September could make the tree vulnerable to oak wilt, a virulent disease. Or pruning a tree's roots could destabilize the tree and cause it to topple over.

A common frustration for many property owners is tree debris from a neighbor's tree: leaves, acorns, fallen fruit, branches seeds or sap. Stromme suggests that, just because you are sick and tired of cleaning up the debris is not cause for a lawsuit, at least in the eyes of the court.

What about over-hanging fruit? "The rule of thumb is that if the tree trunk stands in a neighbor's yard, all of the fruit wherever it is hanging belongs to the neighbor," Stromme says. "Picking the fruit may not be so simple, however. Ownership of the fruit does not give the neighbor any right to trespass onto your property to retrieve the fruit. Courts would probably weigh the right to keep trespassers out of your yard against the tree owner's right to harvest the fruit of her tree."

Each time I listen to another caller anguishing over a neighbor's tree, I ask if he or she has discussed the problem with the neighbor. Too often, the answer is "No."

"Many of these problems can and should be worked out between neighbors, rather than becoming legal issues" Stromme says. In other words, "chat before you chop" those irritating overhanging branches.
 
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