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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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If a tree is actually causing damage to structures (foundation, pipes, driveway, etc.), there's no doubt the owner should deal with it or be liable. I had that very situation and had to spend thousands on a new sewer line.

Posted by: Phil | September 21, 2007 8:45 AM

I'd consider roots growing into the septic system or water lines noxious although I think asking your neighbor to pay for the clean-up on the roots thing is crazy. Probably they were there when you bought the house.

I worry more about people getting anxious about "maybe" events. Like "your tree might fall on my house." It might, but it might not, and likely as not someone else's tree might fall on my house.

You buy a house in a shady neighborhood then you know that trees might topple in storms. It goes along with the 50 y/o plumbing and that ten minute walk to a subway station.

We've had quite a lot of tree work done in the past couple of years. Perhaps this ruling will push folks to maintaining their trees better. It is less expensive to have them trimmed and removed when there hasn't been a storm lately. Our guy threw in the stump removal for almost nothing -- try getting that right after a big storm!

Posted by: RoseG | September 21, 2007 8:46 AM

I paid for the repairs but he removed the tree...that's the point. Trees keep growing, so it would have happened again.

Posted by: Phil | September 21, 2007 9:08 AM

I once had elderly neighbors from the Piney Woods of East Texas who would chop down trees at the drop of a Stetson. A stately live oak disappeared because the songbirds roosting in it pooped near their clothesline.

Posted by: Mike Licht | September 21, 2007 9:39 AM

What makes this situation even more interesting is that the "winners" of the suit are suing the tree owners for $662,000. Now, I'm ok with the court's ruling, if their foundation is damaged and needs to be shored up, and if they have to replace a patio, those things should be fixed, and the tree removed. But $662,000? And for "trespass and negligence"?

Posted by: jan | September 21, 2007 9:39 AM

Um, Marc, once again, you've gone completely hyperbolic. The ruling is not for "the idea that the state is going to come in and decide when my trees are overstepping their bound". Rather, it's that your neighbor may sue you when you don't comply in the first place. If the ruling didn't occur this way, then you could be a total jerk and ignore your neighbor as the tree demolished your neighbor's house's foundation.

This ruling is quite different than having the state come in and declare that the tree is a nuisance and must be taken down. Get it?

Posted by: Ryan | September 21, 2007 10:08 AM

my parents take down a tree once every two or three years (at one point they had 16 trees in their yard, which is a LOT!). But they've also been the victim of three trees crashing down from the neighbors that the neighbors begrudgingly paid for removal from their property. I once lived in Silver Spring, MD and the hillbilly neighbors' tree crashed through the fence and destroyed the shed on my rental house. The neighbors initially refused to pay for anything, even removal of the tree (they cut it at the lot line and left the top in our yard untouched), but eventually through threat of a lawsuit they removed the tree and had the fence replaced, but our landlord never got a new shed and had no legal recourse. That is reality and the reason these kinds of laws get written.

My parents have the best idea, remove trees from near the lot lines and replace them with shrubs. The crazy thing is that their lot in 1958 when they bought the place was entirely dirt- no trees- so every tree that has grown (some easily 40 ft tall) and been replace was a tree they planted. Most of their pine trees came from a college Earth Day event when I took home all the remaining sapplings- they've got at least 4 15-20 foot pines out of that. If you look at the big picture of life then it doesn't matter if you cut down one tree- just replace it and 5 years later it looks great.

Posted by: Anonymous | September 21, 2007 10:11 AM

Also, this is a classic case of "right decision / wrong venue". The court got the policy right but it should have been the legislature making the call. Courts are supposed to interpret law not make it. The proper ruling would have been for the court to make its decision based on current law and call on the legislature to change the law.

Posted by: Woodbridge VA | September 21, 2007 10:19 AM

Increasing the liability of tree owners, which this does by making it easier to sue them, will only further diminish the tree cover in the area.

All the new developments look disgusting--the developer clearcuts, builds, and then installs a bunch of puny trees that will take 50 years to reach the height of the old ones.

Trees have roots. Properly built foundations will not be broken up by tree roots. Maintained sewer lines will not be invaded by tree roots. Why shouldn't the person have to fix his sewer lines, which will decay naturally anyway? Sewers don't last forever.

Posted by: ah | September 21, 2007 11:52 AM

What ever happened to talking to your neighbor, and caring about what happens to your neighbor. If I owned a tree that was damaging a neighbors foundation I would cut it down with no problem. What is the matter with people these days!

Posted by: Comon! | September 21, 2007 11:59 AM

The funny thing is, I bet the neighbor who brought up the case in Fairfax County bought a house in the neighborhood because it had fully mature trees that gave made the area more appealing. Just a thought....

Posted by: Hmmmm | September 21, 2007 12:58 PM

ah posted: "Trees have roots. Properly built foundations will not be broken up by tree roots. Maintained sewer lines will not be invaded by tree roots."

As a Professional Engineer I can safely state that you are wrong on both counts: tree roots and do damage "properly built" foundations and "maintained" sewer lines. Well designed and built foundations and pipes are less susceptible, but not immune.

Posted by: ecw | September 21, 2007 1:19 PM

How is my neighbor's tree damaging my house different from my neighbor's car damaging my house? If it runs over my mailbox or my fence, I would expect my neighbor to pay for the damage. If he parks it halfway onto my patio, I would expect him to move it.

Posted by: Tom T. | September 21, 2007 1:26 PM

Marc, realizing that you rarely respond to all the valid criticism you receive over your many idiotic blog posts, could you explain the point of this statement:

"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"

Is it really your point that all activity within Virginia should grind to a halt until all oversea conflicts are resolved and the real estate market has rebounded? And if so, what exactly would you expect the Virginia Supreme Court to do to rectify those situations so that it could return its attention to those pesky lawsuits winding their way through the court system? Also, could you list in order of priority the issues the Court should resolve before addressing nuisance trees?

Posted by: alvint | September 21, 2007 1:40 PM

Whenever I hear about cases like this, I always wonder why the tree isn't damaging its owner's house? Most lots aren't so big that a tree planted near the lot line can affect one house, but not the other. Shouldn't it be damaging the owner's driveway, foundation or whatever?

Posted by: WMA | September 21, 2007 1:43 PM

never mind trees. what about english ivy? my neighbor has it planted as a ground cover & i have to be vigilant about making sure it doesn't grow into my yard. i hate the stuff. it's an invasion bugger and grows fast. my neighbor doesn't care about it but i sure do.

Posted by: quark | September 21, 2007 1:44 PM

Ah, but you see, alvint, Marc can never really bother to respond to valid criticisms or even questions of his logic simply because he's too busy out there digging up new stories that he can turn hyperbolic. It's always better to keep distracting his readers with new stories than to let them keep thinking about the current one. As we all know, thinking is dangerous and Marc wouldn't want us to do that. We simply need to buy thinking hook, line, and sinker.

I'm still waiting for his explanation for how criticizing AIPAC is the same as anti-Semitism. Not that I think Jim Moran is some great guy. I just want to know how Marc's logic works. Perhaps Marc, like George Bush, lives in a different reality with a different set of logic rules than the rest of us.

Posted by: Ryan | September 21, 2007 1:49 PM

I thought this was going to be about gingko trees.

Posted by: Whoover | September 21, 2007 2:48 PM

Virginia sucks.

Posted by: Anonymous | September 21, 2007 3:29 PM

You cut down my trees and I will chew off your nutsack!

Posted by: Squirrel King | September 21, 2007 8:51 PM

Very good W.Post explanation of the recent complex Va. tree law ruling.

Questions not addressed in the ruling:

1. Are "acts of God" damages related to an apparently non-offending and healthy tree which inexplicatly falls and causes damage to a neighbor'person/property, (or unseen root systems damage the neighbor's foundation)now the tree owner's fault?

2. The rulling dealt with two small surburban, and adjoing lots. What is the definition of rural, where a large landowner's multliple trees may be required to be radically trimmed/removed to prevent possible damages lunder the new ruling? Can a suburban (1)+ acre heavily treed residence, surrounded by subsequent small lots, be classified as rural?

3. Besides safety and liability issues, will the courts consider the need to support our critical need to conserve and expand our surburban tree and urban foresty efforts for environmental and ecological requirements?

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Posted by: SCOOTER | November 20, 2007 12:29 PM

I live next to a sue happy neighbor who told me he sued someone for a tree falling on his beloved car while he was driving down the road and he sued them but they planted the tree. so he comes to me after a big storm complaining that one of my trees branches fell on his car so he is naturally looking for payment and I live in va on several acres my tree is healty I just had a tree specialist look at all of my trees for this very reason. MY neighbor is a ass for parking his car outside in a huge storm when he has a garage. I guess I will see him in court.

Posted by: lise | December 16, 2007 9:07 PM

In response to whatever happened to talking to your neighbor, it isn't always quite so easy. Alot of people who are irresponsible with their plantings and don't consider how it can negatively impact their neighbors, and quite frankly, just don't care and often just 'don't get it'. I work in the nursery business, and have heard countless stories from clients about their neighbors planting high maintenence plants that they never keep trimmed. Someone said to me once, "if I wanted that big thorny bouginvilla bush growing into my walkway, I would have planted one myself". It does seem that often people like to 'scrunch up' plantings right on the property lines, instead of planting them in a better location on their property. People should remember that just because they like something doesn't mean that the neighbor does, nor do they want to endure what often requires extra maintenance on their part, which can be a burden for them.

Posted by: arnold | January 1, 2008 11:11 AM

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