A friend contacted me with this question:
I have a weeping willow in my back yard and some of the branches hang over my neighbor’s fence, and he told my wife yesterday that we need to pay someone to trim the tree to prevent the braches from falling in his yard and supposedly killing his grass. My question is, do I by law have to trim the tree at my expense?
The short answer is NO. In this situation, my friend is not legally obligated to trim his tree. But, it is important to know some of the consequences of doing nothing.
1. The neighbor has a right to protect and enjoy his own property. At the same time, the neighbor has no right to encroach on my friend’s property. Section I, Article I of the Ohio Constitution provides that : “All men are, by nature free and independent and have certain inalienable rights, [including] acquiring, possessing and protecting property…” This Article (and ample Ohio case law), provides that the neighbor may undertake reasonable steps to protect his property or exclude others from its use and enjoyment.
What does that mean? The neighbor might grab a pruner and go to town trimming the tree himself! But, he needs to be cautious. The neighbor is only within his rights to trim the branches that physically extend onto his property and the neighbor cannot kill or cripple the tree. A neighbor exercising reasonable care and only cutting back the branches that cross onto his property is probably safe. My friend may be left with a lopsided tree, but he didn’t have to do the work or pay anyone.
If the neighbor cuts a branch (or even a part of a branch) that is over my friend’s property, the neighbor may be guilty of a fourth degree misdemeanor pursuant to Ohio Revised Code 901.51 and 901.99, and would owe my friend double the amount of damages in a civil claim, such as the replacement cost of the tree x2.
2. So what about the claim of the dead grass? I don’t think a patch of dead grass is going to give rise to a war and litigation. That would be expensive, silly, and a shame. Most cases that I have seen in this area involve large branches or the tree itself falling over into the neighbor’s property and wiping out a garage, cars, or injuring someone. If this happens and the property owner had actual knowledge that the tree on his property was defective, dangerous, or in a state of decay, he’ll be paying for new garages, cars, and medical bills. If the tree was in a plainly obvious state of decay and falls over – the same result occurs because the owner should have known the tree could go at any moment. If a reasonable person would not know that the tree was posing a danger to anyone, whether it was encroaching onto a neighbor’s property or not, the owner is not going to be responsible for any damages. A 1995 case called Jackson v. Ervin discusses this standard in pretty good detail.
Ultimately, a neighbor cannot call the cops and force the property owner to trim his tree. But, the owner runs the risk of having actual knowledge of the complaint about the tree. So if the owner does nothing and a branch falls and damages the neighbor’s property, it will be more likely that the owner will have to pay for any resulting damages. Trim or don’t trim. It’s up to the property owner, but the risk level has climbed because there is some sort of notice. These rules are different for those that live out in the country, fyi.
As a simple caveat, this discussion on the wonderful world of trees was related only to my friend’s scenario – and with minimal facts. Facts will vary and outcomes will vary, but I wrote this article to provide some basics on property law and encroachment. Feel free to leave comments, ask questions, and trim your trees.