With a massive snowstorm on the horizon for Maryland, Virginia, and Washington, DC, one often-overlooked issue is potential tree damage or fallen trees. As a storm approaches, high winds and heavy wet snow are almost certain. You have done everything you can to prepare for the big event. Your snow shovel is ready and the refrigerator has been stocked. But are you prepared for what could happen with your trees? Or your neighbors’ trees? Big storms can create havoc, causing significant power outages when power lines are stricken by a tree branch during a storm. Tree removal has been the subject of much recent discussion, with several lawsuits being filed by homeowners seeking to stop the utilities from removing beautiful mature trees growing on private land. Relying on the easements granted to them many years ago, the utilities are often permitted to remove trees that they deem to be a future threat to their power lines. Does a homeowner have a similar right? The issues that can develop from fallen trees, dangerous trees, or hazardous trees include:
The rights of a property owner to remove or trim their neighbor’s trees.
The potential liabilities of property owners when their trees threaten or actually cause damage to their neighbors.
TREE DAMAGE IN MARYLAND
Questions related to tree-damage liability were recently addressed by former Maryland Attorney General Douglas Gansler, whose office was asked to provide written clarification about the state of Maryland law in this area. Specifically, the Attorney General made clear that under Maryland law, the right or duty of a homeowner to cut a neighbor’s encroaching tree branches back to the property line depends on the condition of the tree and the nature of the abutting property. If a neighbor’s tree encroaches over the property line and presents a danger to the homeowner, the burden is on the homeowner to protect his property by cutting the invading branches and roots to the extent that they protrude on the homeowner’s property. While the homeowner may be permitted to cut his neighbor’s encroaching branches, the homeowner is generally limited to cutting back growth the property line and the homeowner may not enter the adjoining homeowner’s property to remove the growth without the neighbor’s consent.
In fact, in a 1988 decision, the Maryland Court of Appeals specifically held that a landowner could not bring a lawsuit against a neighbor whose trees and other vegetation encroached and damaged his property. In Melnick v. C.S.X. Corp., Maryland’s highest court followed what is known as the “Massachusetts Rule” which in most cases limits the remedy of the landowner that is harmed to self-help – that is, the landowner cannot sue for damage if owner could have removed the encroaching limbs themselves. As noted by the Court of Appeals,
"We have gotten along very well in Maryland, for over 350 years, without authorizing legal actions of this type by neighbor against neighbor."
While self-help is often the remedy to be used by a neighbor in the face of an encroaching living tree, such a remedy is not always the case. A landowner can still be held liable where dead or dying tree limbs from trees on his property injure others. For example, in Hensley v. Montgomery County, the Maryland’s Court of Special Appeals found that the owner of rural or suburban forest land is not liable for the damage done by dead tree limbs falling onto property unless the tree constitutes a “danger to lawful users of abutting public roads and the owner is aware or should be aware of the tree’s deteriorated condition.”
But what duty does the rural landowner have relative to learning the health of his rural trees? The Hensley court noted that the general rule was that the rural landowner did not have a duty to inspect rural trees abutting public roads for dead or decaying limbs due to the practical difficulty of doing so, however, in a more urban setting, since the landowner may only be responsible for a few trees (which can be more easily inspected), there will exist a duty to use due care to protect others from damage or injury caused by dead or decaying trees.
Accordingly, while in Maryland, an owner of rural or suburban forest land may likely not be liable for damage done by dead tree limbs falling onto the property or persons of others unless the tree constitutes a danger to lawful users of abutting public roads and the owner is aware or should be aware of the tree’s deteriorated condition, a urban homeowner may very well be liable for the same injury since the owner will likely have far fewer trees to inspect and, therefore, is seen to have a duty to know about the existence of dead or decaying trees on the owner’s urban property.
TREE DAMAGE IN WASHINGTON, DC
Washington, DC has less guidance than Maryland regarding tree damage liability. While Washington, DC formerly followed the same “Massachusetts Rule” that Maryland follows, Washington, DC decided in 1960 to follow a slightly different rule. In 1960, the highest court in Washington, DC stated in Dudley v. Meadowbrook, Inc.,
"We think the sound and practical rule is that liability in such cases is to be determined by the test of negligence and that a landowner should be held to the duty of common prudence in maintaining his property, including trees thereon, in such a way as to prevent injury to his neighbor’s property."
Washington, DC courts then simply ass, if necessary: “Did plaintiff make out a prima facie case to show that defendant landowners had been negligent?” This rule was supported by the same court in 2008 in the case of Tolu v. Ayodeji. Thus, if a tree falls in Washington, DC on a neighboring property, the ordinary laws of negligence will apply.
TREE DAMAGE IN VIRGINIA
In 2007, the Supreme Court of Virginia made a ruling that differs from the general rules in Maryland and Washington, DC. In Fancher v. Fagella, the Virginia Supreme Court held that where a neighbor’s tree causes harm or poses an imminent danger of harm to an adjoining property, the tree owner “may be held responsible” for this harm. The Fancher court clarified that its prior rule was for times when the population was far less densely concentrated than at present, and more often engaged in agriculture.
In a clarification decision in 2012, the Virginia Supreme Court decided not to extend the Fancher ruling to rural settings. In Cline v. Dunlora South, LLC, the court specifically stated “this Court has never recognized, nor do our precedents support, a ruling that a landowner owes a duty to protect travelers on an adjoining public roadway from natural conditions on his or her land.”