My Neighbor’s Tree is My Problem

There are a lot of differences between Southwest Florida and northern states. Perhaps one of the biggest is the year-round growth of landscaping. No snow or freezing weather so almost everything keeps on growing. Plant a small hedge one day and before you know it the hedge is taller than a house!

Most of the time, property owners are happy with the growth of bushes and trees. As the landscape grows it gives properties a finished look of greenery and other vibrant colors, converting the Marco Island Rock into a paradise.

Sometimes when trees grow they provide more than beauty and shade. They become a nuisance. When that nuisance extends beyond the property line, neighbors go to war. What rights does each neighbor have when a tree becomes a nuisance to the neighbor?

The law in Florida is simple. The owner of the property with the nuisance tree has no liability for the nuisance it causes. The neighbor’s only right is to cut the tree back to the property line. That may sound too simple, so let us take a look at a few actual cases in this area.

In one case, Gretchen Gallo sued her neighbor, Beverly Heller, for money damages and an injunction over trees growing on Heller’s property. Why was Gallo upset? Heller had Ficus and Melaleuca trees encroaching onto Gallo’s property. Gallo explained to the court, (a) tree branches damaged her roof and house, (b) the tree roots caused her driveway and cement walkway to crack, (c) Melaleuca leaves dropped onto her property and caused her dog to get a severe allergy and (d) shade from the trees caused some of her landscaping to die.

The court explained the majority rule in the United States, also the rule in Florida, is that a possessor of land is not liable to people outside of the land for nuisance due to natural vegetation growing on the land. That meant Gallo could not get damages or an injunction against Heller. Gallo’s only right was to trim back the nuisance landscaping to her property line with Heller at Gallo’s expense. The court concluded:

“{I}it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

Recognizing she would not succeed suing her neighbor for a nuisance tree, Virginia Scott added a claim for damage caused to her property from cutting her neighbor’s tree back to the property line, in Scott v. McCarty. Claim of damage due to the cutting process failed.

Rene Vaughn tried yet another approach in Vaughn v. Segal. In that case, Vaughn sued for damages to her property caused by Segal’s trees. Instead of relying on a simple claim for damages, she claimed the tree violated an ordinance which set up a list of prohibited conditions, required maintenance and provided for enforcement by the county’s code enforcement procedures. The court explained the ordinance was not intended to and did not create a private cause of action and denied Vaughn’s claim.

It was only a matter of time before a property with trees damaged by a neighbor cutting back to the property line sued the neighbor for damages. In Balzer v. Ryan, that is exactly what happened.

A pine tree on Balzer’s property, very near the property line, was causing damage to her neighbor. Roots ran under the neighbor’s driveway damaging the sewer line and driveway. The driveway was so badly damaged it had to be replaced. While removing the driveway, the tree roots were cut. That did not kill the tree, but undermined its integrity with risk that it would fall on Balzer’s home. Balzer had the tree removed to avoid damage to her home and then sued her neighbor for the cost of tree removal.

The court ruled the neighbor was not liable for the cost of removal. The neighbor had the right to cut back the tree to the property line. To charge the neighbor cost of removing the tree would fly in the face of that right.

The court emphasized that the neighbor cutting roots on the neighbor’s property caused no damage other than to the tree. It did not decide if the neighbor would have been liable if the root cutting caused the tree to fall into Balzer’s home but implied that fact situation could result in liability.

What else could create liability? It is likely a property owner allowing or creating a dangerous condition with landscaping would have liability. The cases exonerating property owners all had live and healthy vegetation. If the “problem” vegetation was dead or diseased and that condition caused damage to a neighbor, cases protecting a property owner when tree roots or limbs cross the line would not likely control. 

Just as the law is well settled that one is not liable when a healthy tree encroaches into a neighbor’s land, the law is also settled that neighbors have a common law duty not to create danger to each other. If a dead tree or limbs pose such a danger, the property owner with that tree will be charged with need to take action or be liable for consequences of allowing the dangerous condition to continue.

Most landscape disputes involve trees in good health. It is precisely that good health that causes the neighbor a problem as the tree grows and extends into the neighbor’s land. Cutting back the offending tree is the neighbor’s only recourse. The cutting can even kill the tree, as long as the cutting does not cause the tree to fall or damage the property on which it is located.

These disputes could easily be resolved by cooperating neighbors. Not all cooperate. Hence, we have court cases for guidance.