I swear I get some version of this question at every family reunion or barbecue. It seems a lot of folks are concerned about trees falling and injuring their property or worse, their children. Or maybe a tree is continuously dropping branches and debris on their car, has become unsightly or looks to be on the decline. It may not seem apparent, but there are lots of legal implications when it comes to these green giants. Trees are incredibly important. They provide shade, fruit, habitat for animals, privacy, landscape ornamentation, lumber, and even the air we breathe. In thinking about how valuable trees are, my mind wanders to Shel Silverstein’s children’s book, “The Giving Tree.” First published in the 1960’s, it’s a fable centered on a boy and his apple tree. Over the course of the boy’s life the tree provides him with a place to play, food, wood to build a house and, ultimately, a lowly stump for the now elderly man to rest. I think my kids make me read this book to them just to watch me cry! Every. Single. Time. Aside from how heartbreaking it is to witness the exploitation of the tree and its journey to stump-hood, the story demonstrates at its surface the vital status trees have in our ecosystem. It is not surprising then that our laws place high value on them and provide for harsh penalties when trees are damaged or cut without permission.
Massachusetts General Laws Chapter 242, Section 7 imposes damages if someone willfully cuts down, harvests, or destroys trees owned by someone else without their consent. Under certain conditions, the damages can be trebled (tripled). Even if the perpetrator mistakenly thought they were on their own land, single damages can be awarded to the rightful owner of the tree(s) harmed. In awarding damages, the Massachusetts courts have identified several methods for measuring the injury caused to the tree owner. Examples include the cost of restoration, value of the lost timber, and diminution in market value of the property affected. These approaches provide a broad spectrum of financial consequences to the cutter.
The goal of the restoration method is to restore the affected property to its condition prior to the loss of trees. Using this method, the valuation of smaller trees is simple enough using the cost of similarly sized replacements from a nursery or garden center. Valuing mature trees, which are often practically impossible or prohibitively expensive to replace, presents a more challenging scenario. The “trunk formula” for valuing mature trees, described in a 2013 Land Court case (Pelullo v. H&R Development, LLC), takes the cost provided by a nursery or garden center for a smaller, younger version of the lost tree and multiplies that based on the age of the tree at the time of loss. Each square inch of the trunk area is then adjusted based on factors like the type of tree, its health at the time it was damaged or cut, where it was planted, the conditions existing at the site and so forth.
Short of restoration, a property owner may seek recovery based on the actual value of the tree, including its aesthetic value, or the timber that was lost. Expert testimony may be necessary to establish the values under this theory of recovery. According to the Massachusetts Department of Conservation and Recreation, standing timber values can be based on a number of factors including “timber quality, distance to market, accessibility of property, sale volume, market demand, season skid distance, landowner requirements, and logging costs.” Aesthetic value is even more nebulous.
Another method to determine damages requires analyzing the value of the affected property both before and after the tree loss. To determine this, the judge in Larabee v. Potvin Lumber took the value of the property following the tree loss and subtracted it from the purchase price to calculate the loss in value.
Because G. L. c. 242, § 7 does not mandate which method must be utilized, property owners have wide latitude to pursue the method of recovery that would most benefit them. Notwithstanding, the damages must still be reasonable. For instance, restoration damages will not be applied if restoration is not necessary or the cost of restoration greatly outweighs the injury to the tree owner. This was the outcome in the aforementioned Pelullo case where the judge determined that the trees had not been essential in providing privacy and the property owner admitted as much in initially seeking only the value of the lost timber. Contrast this to the outcome in a 2006 decision in another Land Court case (Ritter v. Bergman), where the judge, citing the loss of privacy and shielding from neighboring homes, awarded trebled damages amounting to $130,782.00 for trees that were removed from a 5,000+ square foot area. In a 2008 Superior Court case involving property on Martha’s Vineyard (Glavin v. Eckman), a judge awarded trebled damages of $90,000 when a property owner seeking to improve his ocean view cut down a stand of 10 mature oak trees on his neighbor’s property. In reaching their decision, the judge noted the shade created by the lost trees as well as their aesthetic qualities.
Notwithstanding their high worth given the significant damages awarded for their unauthorized removal and injury, trees can pose several hazards and, when dead or dying can create nuisances for which liability may arise. Diseased or damaged trees can be at risk for falling on homes and automobiles and susceptible of causing injury to life and limb (no pun intended). Branches can interfere with overhead utility wires while roots can wreak havoc on underground utilities like septic systems causing sewage backup and even creeping into gaps in foundations. Dropped fruit, leaves and branches and insect infestations are also annoyances. But what if the tree causing all the damage belongs to your neighbor or straddles the property line?
It has long been settled that if you own a property with a tree that stands completely within your property’s boundaries, then you own that tree and the rights, privileges and responsibilities associated with it. The trimming and maintenance of trees on one’s own land are generally in the property owner’s discretion unless the trees are located within an area that is within the jurisdiction of a regulating entity such as a local conservation commission or the Department of Environmental Protection or subject to some other municipal regulation providing for the protection of trees. In those instances, a property owner should consult with the local regulating authority before taking any action. The rights shift a bit where a tree is located within a property, but its branches and roots extend onto abutting land. In that case, a neighboring landowner may engage in self-help to remove the offending branches and roots. It is not necessary that the over-extending branches and roots be causing damage to the abutter’s property. The branches and roots need only to extend over the property line and the abutting property owner can cut them back to the property line, but no further.
When a tree straddles the property line dividing two properties, matters get a little more complicated. The ownership of the tree is actually vested in each of the property owners whose land the tree encroaches upon. Each owner has the same rights to cut limbs and roots that invade their property. However, this right is not unlimited. One cannot prune the invading portions of the tree in such a way that would cause injury or death to the entire tree. One must use reasonable care in pruning the tree taking into consideration the effect it will have on the health and lifespan of the tree. To permit otherwise would result in one property owner having unfettered authority to kill the tree to the detriment of the other property owner.
Now, despite the law recognizing the right to cut overhanging branches and invading roots, the discord with your neighbor that may ensue might not be worth their removal. With the help of the following practical tips, you may be able to avoid seeming un-neighborly and still be able to manage the offending tree:
1. Determine on whose land the tree is actually located with the assistance of a land survey. Knowing where a tree is located is the first step in determining what you can do with it. Do not rely on a mortgage plot plan, sketch plan or drawing or other unverified plan. If the survey still leaves open the question of location or it shows that the tree straddles the property line, your neighbor’s cooperation is going to be necessary if you want to remove the tree entirely.
2. Determine whether the tree is located in wetlands, wetland buffer zones or some other jurisdictional area that will require authorization from a regulating authority.
3. If your desire to remove a tree is based on your perceptions about its age, health, condition, proximity to structures, etc., be sure to consult with an arborist and get their professional opinion in writing. When approaching a neighbor about removing their tree, it helps to know what you’re talking about! An arborist’s opinion will provide that boost and will also show your neighbor that you’re serious and that your opinion is based in fact.
4. Consult with a tree removal professional to discuss methods of pruning and removal, including how the tree will be accessed, the equipment that will be used, whether and how the stump will be removed, how the area will be restored and what will be done with the timber once the tree is cut down. Get a few estimates in writing. If you are looking to share the cost with your neighbor, they will come in handy. If you are looking to give a carrot to your neighbor to induce them to agree to the tree’s removal, offering to pay may help that effort.
5. Now, kindly approach your neighbor to discuss your concerns and plans and get their written consent to your action plan to avoid liability later. Listen to your neighbor’s concerns. After all, that tree may have resided on their property for many years and provided them with a view that they perhaps, haven’t considered living without. Be considerate, kind and open to working together. Entering into the task jointly may have the unintended benefit of strengthening neighborly ties whereas unilateral action can have devastating consequences.
6. Be sure to obtain necessary permits or government approvals prior to engaging a tree professional and ensure that your contract with the tree professional is thorough and that they are sufficiently insured. Getting references goes without saying.
A practical approach, that is considerate and takes into account legal rights and responsibilities is “gurantreed” to put you on the right “root” to getting the task on the chopping block (all puns intended)!