Frost-y Neighbors and Vegetation Disputes

Good fences make good neighbors…unless your next-door neighbor has a tree on his property.  A Whomping Willow of a tree that you do not like.  A tree that permits leaves, branches and roots to journey from the adjoining land parcel onto your yard and into your kitchen table view.  Worse, the tree is an eye-sore and a source of real and consequential damages.  The sapling’s leaves stain your driveway, its roots crack your sidewalk and branches fall into the pool clogging the filter. So what options are available to an aggrieved landowner?

Florida courts have held that a landowner is not liable to his adjoining landowner neighbor for a nuisance resulting from trees and natural vegetation, and you will fail in your litigation attempt against your neighbor to recoup damages related to a sapling leaf invasion.  Additionally, a Florida landowner is prohibited from self-help removal of natural vegetation, shrubbery and/or trees on neighboring property.  Do not play George Washington and chop down your neighbor’s cherry tree.  Intentional lumberjacking is destruction of private property, otherwise known as criminal mischief, which depending on the value of destruction, may be a criminal misdemeanor or felony.  Additionally, there are probable civil compensatory damages for the value of the removed tree, plus if the tree removal was clearly egregious and intentional, potential punitive damages liability.

Now do not be disheartened.  Courts have held that the adjoining landowner is privileged to trim back, at one’s own expense, a natural vegetation encroachment.  For example, if a tree is growing from your neighbor’s property into your land then you may prune back the limbs and roots up to the boundary line.  And of course, there is a wrinkle.  You may also be liable for damages if a trimming leads to substantial injury and/or death of the vegetation.  However, it is suggested you have a friendly talk with your neighbor prior to taking any action to avoid a boundary line dispute.

Note there is a second wrinkle.  Hurricane Irma presented a unique question:  Is your neighbor liable if a tree from their property falls into your land and damages your property?  The answer is maybe. If the tree was alive and healthy, more likely you will have to bear the expenses of the damages.  It was not foreseeable a healthy tree would fall over.  However, if the tree was dead and your neighbor knew or should have known the dead tree might fall, your neighbor may be liable for the damages.  Each situation must be factually reviewed on a case-by-case basis.

As always, we recommend consulting with your local real estate attorney before attempting to remove any vegetation along your property boundary line.

Sincerely,

Berlin Patten Ebling, PLLC

Article Authored by Michael Schuchat, Esq.   mschuchat@berlinpatten.com

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

www.berlinpatten.com 

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