The Schroeder Law Firm, P.C.

Your Neighbor's Tree and Your Rights

W. Harrison Schroeder, Esq.

Posted March 15, 2016, by W. Harrison Schroeder, Esq.

Our firm often receives calls from home owners asking about their rights with respect to a neighbor’s tree. In 2007, the Supreme Court of Virginia entered a landmark ruling concerning encroaching trees in the case of Fancher v. Fagella, 274 Va. 549 (2007). In that case, Mr. Fancher and Mr. Fagella owned adjoining townhomes in Northern Virginia. Mr. Fagella had on his property a large sweet gum tree with an invasive root system that had caused damage to a retaining wall on the boundary between the two properties, displaced pavers in Mr. Fancher’s patio, caused blockage of his sewer and water pipes, and impaired the foundation of his house. Mr. Fancher tried to repair the damage to the retaining wall and his foundation, but the continuing expansion of the tree roots made such steps ineffectual.

Mr. Fancher brought suit and asked the Circuit Court to order the neighbor to remove the tree and pay to repair the damage to his property. The Circuit Court refused to order removal of the tree, applying old legal precedent decided in the case of Smith v. Holt, 174 Va. 213 (1939), which held that the intrusion of roots and branches from a neighbor’s plantings which were not noxious in their nature and had caused no sensible injury were not actionable at law, the plaintiff being limited to his right of self-help. However, the Supreme Court of Virginia in this case reversed that decision and established a new legal standard to address such issues in the future.

The Supreme Court overruled the Smith v. Holt case in part and adopted the following approach: “Accordingly, we hold that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to [adjoining property], and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. We do not, however, alter existing . . . law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property. Thus, the law of self-help remains intact . . . .”

The Court found, based on the facts of this case, that the gum tree constituted a continuing trespass, resulting in actual harm to his property, which would allow injunctive relief. However, the Court noted that every case is different and would require a weighing of the equities: “In weighing the equities in a case of this kind, the chancellor must necessarily first consider whether the conditions existing on the adjoining lands are such that it is reasonable to impose a duty on the owner of a tree to protect a neighbor's land from damage caused by its intruding branches and roots. In the absence of such a duty, the traditional right of self-help is an adequate remedy. It would be clearly unreasonable to impose such a duty upon the owner of historically forested or agricultural land, but entirely appropriate to do so in the case of parties, like those in the present case, who dwell on adjoining residential lots. Further, if such a duty is found to exist on the part of the tree owner, the chancellor must determine the extent of the remedy. Under the circumstances of the case, will self-help by cutting off the invading roots and branches, followed by an award of damages to compensate the plaintiff for his expenses, afford an adequate and permanent remedy, obviating the need for an injunction? If not, will complete removal of the defendant's tree be the appropriate remedy when the equities are balanced? An affirmative answer to the latter question will necessitate a mandatory injunction. As in all cases in which equitable relief is sought, the chancellor's decision must necessarily depend on the particular facts shown by the evidence, guided by traditional equitable principles.”

Thus, a Court will only order a property owner to remove or cut back encroaching branches or roots after “weighing the equities” of the case. The Court would weigh the benefit an injunction would offer the aggrieved party against the cost or damage it would impose on the tree owner. The Court may not order a removal of the tree if the aggrieved party can be made whole by exercising self-help and receiving an award of damages from the tree owner.

If you have a tree dispute with a neighbor, contact our office at (540) 745-4435 to schedule an appointment to assess your case and discuss your various options.

Burwell House
304 East Main Street
Post Office Box 156
Floyd, Virginia 24091-0156

Telephone: (540) 745-4435
Facsimile: (540) 745-4436

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