How Do I Handle My Neighbor's Encroaching Tree Branches?

 

The question is a common one. It usually sounds something like this: "My neighbor has a large number of trees on his side of our common fence line. The trees are large and drop dead limbs on my property. Even more troubling, the overhang from the trees prevents production from about five rows of my crops.  Can I require my neighbors to trim those trees? What are my rights and obgligations?"

The answer, as usual, is, “It depends.”

The U.S. courts, over a long period of time have established the following four different approaches to deal with this type of situation.

  • Under the “Massachusetts Rule,” a landowner’s right to protect property from encroaching limbs and roots of an adjacent property owner’s trees is limited to self-help (i.e., cutting-off branches and roots at the point they cross the property line).   
  • The “Virginia Rule” is a slight modification of the Massachusetts Rule and can result in a tree owner being held liable for damage caused by the tree and being required to cut back roots and limbs if the tree poses a risk of actual harm or an imminent danger.  In such situations, if self-help is inadequate as a permanent remedy, complete removal of the tree may be an available remedy. 
  • The “Restatement Rule” (based on Restatement (Second) of Torts §§839-840 (1979)) requires a landowner to control vegetation that encroaches upon adjoining land if the vegetation has been planted or is maintained by a person, but not if the vegetation is “natural.” 
  • Under the “Hawaii Rule,” living trees and plants are ordinarily not nuisances.  However, trees and plants can become a nuisance when they cause harm or pose an imminent danger of actual harm to adjacent property. 

Iowa follows the common law or “Massachusetts Rule.” Thus, a landowner may trim a neighbor’s trees branches from his own side of the fence line. He may also dig up roots from his neighbors trees if they cross onto his property. The remedy, however, is limited to self-help. Harndon v. Stultz, 100 N.W. 329 (Iowa 1904).  Kansas, on the other hand, follows the Hawaii approach. In 1985, in Pierce v. Casady, 711 P.2d 766 (Kan. Ct. App. 1985), the court held that where a tree is a nuisance, one landowner may compel his neighbor to abate that nuisance or seek damages for any injury cause by the tree.  Importantly, the court ruled that if trees with the overhanding branches do substantial harm, or create an imminent danger, the tree is a nuisance.   

The preferred approach is for landowners to reach an agreement with their neighbors regarding these matters. Where such an agreement cannot be reached, landowners are encouraged to seek the input of the local fence viewers.  The fence viewers may be able to provide valuable assistance in these cases.

CALT does not provide legal advice. Any information provided on this website is not intended to be a substitute for legal services from a competent professional. CALT's work is supported by fee-based seminars and generous private gifts. Any opinions, findings, conclusions or recommendations expressed in the material contained on this website do not necessarily reflect the views of Iowa State University.

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