BOUNDARY TREES: WHO OWNS THEM? WHO’S RESPONSIBLE?
Trees can be either an asset or a nuisance, depending on your perspective and situation. A tree that provides shade, privacy or other value to one person’s property may block the view of a neighbor or interfere with the neighbor’s use and enjoyment of his own property.
Questions often arise about the ownership of trees growing on or near a boundary line between adjoining properties. Which landowner has the legal right or responsibility for a tree’s care or removal? What if they disagree over what is needed? Whose interests take priority?
The answers to these questions start with a determination of the tree’s ownership. In general, the rights and responsibility for a tree are vested in its owner. The ownership of a tree is determined by the location of its trunk. If the trunk is located entirely on A’s land — even if its limbs or branches overhang onto B’s land — A owns the tree. As its owner, A has the sole right to preserve the tree or cut it down. This is true regardless of A’s motivation or the impact its removal would have on B or B’s land. Luke v. Scott, 187 N.E. 63 (Ind.App. 1933).
In resolving disputes over boundary trees, Indiana courts have fashioned the following general rules:
- Even if a tree on A’s land may pose a threat to B or B’s land, the laws of trespass generally preclude B from coming onto A’s land to trim or remove the tree. In the case of a “danger tree” – one that is dead or leaning and poses a risk of serious harm — a court of equity might allow relief if the harm can be proven to be likely and imminent. Formal notice to the tree’s owner and his homeowner’s insurance company may also result in voluntary remediation. But the mere possibility of future harm from a leaning tree or the inconvenience from leaves or other debris that fall or blow onto neighboring property is generally not grounds for such extreme relief.
- If the limbs from A’s tree extend over the boundary line onto B’s land, B has the right to remove or trim just those limbs that overhang into B’s airspace. Luke v. Scott, 187 N.E. 63 (Ind.App. 1933). The same rule applies to encroaching tree roots in the ground. Scheckel v. NLI, Inc., 953 N.E.2d 133 (Ind. Ct.App. 2011 ). B may cut encroaching roots as necessary, for example, to make room for a swimming pool or fence or stop the buckling of a patio or driveway on B’s own land. But remember that local ordinances typically regulate how close to a boundary line new structures may be built. And in performing any curative work, B may not trespass onto A’s land. But as long as the work does not extend beyond the boundary line, B is not responsible for any adverse impact from trimming A’s tree. Alternatively, B may bring suit against A for the damages caused by the overhanging limbs or encroaching roots.
- If the tree is located such that its truck extends across the boundary onto the land of both A and B, the law considers the tree to be their common property. In that situation neither owner acting alone has the right to remove or harm the tree without the other’s consent. Luke v. Scott, 187 N.E. 63 (Ind.App. 1933). Even minor trimming should not be undertaken without communication with the other owner.
- Indiana law does not recognize a landowner’s right to air, light or a scenic view from his own land. Wolf v. Forcum, 161 N.E.2d 175 (Ind.App. 1959). As long as done in compliance with applicable building codes and zoning ordinances, an owner may build or maintain an otherwise legal, non-encroaching structure on his land despite its impact on a neighbor’s view. Giller v. West, 69 N.E.548 (Ind. 1904);Justice v. CSX Trans., 908 F.2d 119 (7th Cir. 1990). There is no reason to think a tree should or would be treated any differently.
- In general, the law obligates landowners to periodically inspect their property and take reasonable care to maintain it so as to not pose a risk of harm to others. If they fail to identify and remedy dead or dangerous trees and harm results, they can be held for that harm. But they are not responsible for the unforeseeable results of storms or other natural events that befall what appear to be healthy trees. Acts of God are not the responsibility of anyone; that’s one reason all landowners are wise to have adequate liability insurance coverage.
- The particular care required of a tree owner will vary depending on its circumstances, such as its proximity to another’s structures, passing motorists, or pedestrians. Another factor is whether the land is residential, urban or rural. Generally speaking, the more urbanized or populated the area, the greater the risk of harm to neighbors or the public and, therefore, the greater the care and attention expected. See. e.g., Patterson v. Seavoy, 822 N.E.2d 206 (Ind. Ct.App. 2005); Marshall v. Erie Ins., 930 N.E.2d 628 (Ind. Ct.App. 2010); Miles v. Christenson, 724 N.E.2d 643 (Ind. Ct.App. 2000); Valinet v. Eskew, 574 N.E.2d 283 (Ind. 1991); May v. George, 910 N.E.2d 818 (Ind. Ct.App. 2009).
These principles established by common law courts are subject to change as society evolves or the circumstances vary, so keep in mind they may not apply in every situation or forever.
The true location of a boundary line is sometimes uncertain or in dispute, and a professional land surveyor may be needed to verify or establish the line. Unfortunately, even surveyors will occasionally disagree about the line’s precise location, especially where the deed record or a past survey is an old one.
Also remember that regardless of the location of a boundary line, longstanding maintenance practices by neighboring landowners or the existence of fences and natural objects that have been recognized or treated as the property line can also affect a determination of the legal boundary.
Judges deciding these disputes in court tend to expect neighboring landowners to communicate with each other in search of a reasonable solution before taking the law into their own hands or seeking legal recourse. Communication in search of a resolution often results in a workable agreement and may avoid a contentious, expensive and unpredictable lawsuit.
Kent M. Frandsen is an Indiana attorney whose practice focuses on civil litigation. This article is for informational purposes only. It is not to be considered legal advice and does not form an attorney-client relationship with the reader. The facts and equities of each situation are unique, so please contact an attorney to discuss your particular circumstances.