RFQ: When Does A Noxious Tree Become A Nuisance?
The brave justices of the Virginia Supreme Court have dared to go where few human beings dare: To the dangerous terrain where neighbors quarrel and clash over trees.
The court ruled last week that if your neighbor's tree poses a danger to your house, you can force the neighbor to prune or even fell the tree.
Forget war overseas and the mushy real estate market here: The real battlefield in many people's lives is the borderlands between your house and the guy next door's. And trees are often the primary flashpoint in those confrontations. So when Virginia's top court decides to change the seven-decade-old precedent and declare that you have a far greater obligation to satisfy your neighbors than you or the law ever before allowed for, that's big news.
Today's Random Friday Question: When does a noxious tree become a nuisance? Under the old standard,
In the case considered by the Supreme Court, Richard Fancher and Joseph Fagella, next-door neighbors in the Cambridge Court subdivision of Fairfax County, faced off over a large, 60-foot-high sweet gum tree that sits on Fagella's land, but whose roots have "displaced the pavers on Fancher's patio, caused blockage of his sewer and water pipes and has impaired the foundation of his house," according to the court's synopsis of the case. The tree's branches also hung over Fancher's house and deposited leaves and debris on his roof. An arborist estimated that the tree could grow to twice its current height.
Under Virginia's existing law, all of this made the tree a "noxious" tree. Fancher asked the courts to order his neighbor to get rid of the tree and pay for repairs to his property.
Fagella said hey, it's my tree, and I have the right to keep it. The lower court agreed.
The Supreme Court took a look and decided that it's time to change Virginia's approach to the many such cases that pop up. The old rules, the court decided, "were decided in times when the population was far less densely concentrated than at present, and more often engaged in agriculture." The old rules basically said that if the neighbor's tree grows over onto your property and you don't like it, you can pare back the parts that encroach on your land, but otherwise, you're stuck with the situation.
Virginia's 1939 rule said that unless the tree's impact on the neighbor was truly "noxious," the neighbor's only recourse was to haul out the clippers and try to limit the damage on his own side of the property line. The courts, the law said, were no place to play out these neighbor disputes.
But over the years, some other states' courts have moved to be more sympathetic to the aggrieved neighbors, ruling, as Hawaii's top court did in 1981, that "[W]hen overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, [substantial] harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots...."
Virginia's law now strikes the Supremes as unclear and downright weird. The use of the word "noxious" to describe a really poorly-behaving tree makes it just too hard for a truly aggrieved neighbor to get relief from really dangerous tree situations. The legal definition of "noxious" is a doozy: ""Hurtful; offensive; offensive to the smell. The word 'noxious' includes the complex idea both of insalubrity and offensiveness. That which causes or tends to cause injury, especially to health or morals." That's some tree, huh?
In the plant kingdom, the word applies better to poison ivy or kudzu. But just big ol' trees?
This word "noxious," the court has now decided, "imposes an unworkable standard for determining the rights of neighboring landowners."
So the new word governing trees in Virginia will be "nuisance," adopted from Hawaii's groundbreaking tree jurisprudence. "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," wrote the Hawaii court in a ruling that Virginia is now adopting as its guide.
The new rule will certainly make things harder for judges, who now have the responsibility to decide whether a disputed tree is indeed a nuisance. Your nuisance could well be my cherished source of shade and comfort, and how many judges are going to be eager to wade into that vat of emotions?
The Virginia Supremes say their new rule doesn't apply in rural settings, but is intended to govern disputes such as the Fancher-Fagella face-off, where close, urban and suburban boundaries breed all manner of battle over greenery. And while the top court ordered the lower court to take another look at the sweet gum tree dispute in Fairfax, Fagella took care of that for the courts: A few weeks ago, he cut down the dang tree.
But the larger question remains: Is the fact that you have a nuisance tree on your property enough to justify giving your neighbor the right to force you to kill that nuisance? I like the idea that the law is flexible enough to give a neighbor a way to press me to deal with a problem that I should have dealt with as a matter of common courtesy. But I bristle at--and I think others may openly revolt against--the idea that the state is going to come in and decide when my trees are overstepping their bounds.
Is the nuisance standard noxious?
By Marc Fisher |
September 21, 2007; 7:53 AM ET
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