Thursday, January 16, 2014

Neighboring Tree Threatens Your Community, What Can You Do?

(As originally published in the January 2013, “Restore the Shore” issue of Community Trends, CAI-NJ)

In the aftermath of a severe storm you may find that a neighboring property’s tree has fallen on to your community’s property.  Even leaning trees or overhanging branches may create a nuisance; or worse, a potentially hazardous condition.  In the unfortunate event that a neighboring property’s tree should fall, causing damage to community property, you should immediately contact your insurance company to alert them of the potential claim.  Under New Jersey law, absent proof of some negligence or unreasonable activity, liability is not likely to be imposed upon the neighboring property owner; even despite the fact that the tree was located on the neighbor’s property. 

In the case of leaning tress or overhanging branches, there is a long-standing principle in New Jersey law providing that this may constitute a nuisance for which an action for damages lies.   In such a circumstance a property owner is entitled to the right of self-help to lop off overhanging tree branches to the property line, but no further.   These legal remedies, however, should only be used as a last resort.

The absolute best solution is to put the neighboring property owner on notice of the nuisance or hazardous condition and coordinate a solution together.  More likely than not the neighboring property owner will recognize the potential liability of failing to take action and will be more than happy to trim back the portions of the tree overhanging onto your community’s property.  There may even be an applicable local ordinance related to the upkeep and removal of trees requiring the neighboring property owner to keep trees trimmed to prevent the creation of a nuisance or hazardous condition. 

Immediately resorting to a legal remedy, such as filing a lawsuit or acting upon self-help rights, is not preferred and has effects that cannot be undone.  For example, should the community elect to act upon self-help rights, they may be subjecting themselves to liability for trespassing or for damage caused to the neighboring property.  More often than not you will find that in order to properly trim back the tree branches you will need access to the neighbor’s property, which will require permission.  Furthermore, electing to trim the tree branches can result in damage to the neighbor’s property or create a condition which is harmful to the health of the tree and endangers the tree’s continued vitality; both of which may impose liability upon the community.   

It is important to remember that the owner of the tree is your neighbor.  The fact is, after the matter is resolved, you will continue to remain neighbors and, presumably, would prefer to maintain a cordial relationship.  If you find that a neighboring property owner is not willing to cooperate concerning a tree which has fallen onto or is leaning over your community’s property you should immediately contact your attorney.

Ackerman v. Ellis, 81 N.J.L. 1 (Sup. Ct. 1911). 
Wegener v. Sugarman, 104 N.J.L. 26 (Sup. Ct. 1927). 

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