Neighbors and Trees; Common Disputes and How They Are Treated Under Massachusetts Law

Photo of Ethan Z. Davis

It has been said that "the best time to plant a tree was 20 years ago. The second best time is now." These words reflect the wisdom that few things are as beautiful and capable of enhancing the appeal of property as much as a mature tree. It is therefore not surprising that an entire body of law exists concerning tree-related disputes between neighbors.

What if my tree damages my neighbor's property?

The "Massachusetts rule" is that the owner of a healthy tree is not liable for any damage to a neighbor's property caused by the tree. The Supreme Judicial Court recently considered whether to adopt the "Hawaii rule," which grants neighbors a right of action to resolve disputes in court over healthy trees and allows a neighbor to require that the tree owner pay for damage and cut back branches and roots if the tree causes, or there is an imminent danger of it causing, harm to the neighbor's property. In a decision that discusses the "multiple benefits" of the centuries-old Massachusetts rule along with a number of tree puns, the SJC declined to "fell judicial precedent" and reaffirmed the vitality of the Massachusetts rule on the grounds that it "simplifies assignment of responsibility" and "may prevent unnecessary legal harassment from neighbors who merely have an axe to grind." Shiel v. Rowell, 480 Mass. 106 (July 16, 2018). Notably, the Massachusetts rule only applies to healthy trees, so landowners have an incentive to monitor and care for trees on their property.

What if my neighbor cuts down my trees?

A Massachusetts statute dating back more than 300 years provides for up to triple damages for intentionally cutting or otherwise destroying another's trees. Mass. Gen Law ch. 242 sec. 7. The amount of damages subject to trebling varies depending on the facts of the case, but is most commonly the value of the timber cut, restoration cost, or the resulting diminution in value of the property. In a well-known Massachusetts tree dispute between neighbors, the owners of a vacation home on Martha's Vineyard cut down ten large, mature oak trees on their neighbor's land to improve their ocean view. Based on expert testimony from an arborist, the jury awarded damages of $30,000 (which was subsequently trebled) as the reasonable cost of restoring the property "as nearly as reasonably possible to its original condition." Glavin v. Eckman, 71 Mass. App. Ct. 313 (2008).

Can I remove branches that overhang my property?

When a tree trunk stands wholly on one party's land, that party is considered to be the sole owner of that tree. Levine v. Black, 312 Mass. 242 (1942). Under Massachusetts law, if that tree's branches or its roots extend into the neighbor's property, there is no violation of the neighbor's property rights. Michalson v. Nutting, 275 Mass. 232 (1931). The neighbor, however, may trim the roots and branches to the extent they are on his property as long as the trimming of roots or branches is not to a degree that would kill the tree. Bassin v. Fairley, 2014 WL 2803063 (Mass. Land Court June 17, 2004). Notably, the neighbor may not cross or enter another's property for these purposes without consent.

Can I remove a tree that straddles a boundary line?

When a tree trunk straddles a common boundary line, the owners of the adjoining properties "own the whole tree as tenants common." Krieger v. Lanark LJS LLC, 2016 WL 5637126, at *10 (Mass. Land Ct. Sept. 23, 2016). Each neighbor has the right "to cut off limbs and roots which invade his premises" and the right "to prevent the other party from dealing with part of the tree so as to injure or destroy the whole tree." Unless both neighbors agree to remove the tree, however, a single party may not remove the tree unless it somehow constitutes a nuisance, such as if the tree is in poor health. Kurtigan v. Worcester, 348 Mass. 284, 288 (1965) ("[T]rees can be a nuisance as much as can a dilapidated building or other structure.").

Mature trees, easements and adverse possession

Trees can also play a role in disputes between neighbors over property ownership and easements. An easement is the right to use the property of another and often involves the right to pass over another person's property. Disputes involving easements are not uncommon, such as where the owner of the land that has the burden of the easement (the "servient estate") no longer wants their owner of the easement (the "dominant owner") to use their property. The presence of mature trees and vegetation on the portion of the servient estate over which the dominant owner has a right of way sometimes gives rise to an argument that the easement was abandoned or extinguished by adverse possession. Both arguments are highly fact-intensive because abandonment and adverse possession each depend on a determination of intent. It is well settled that mere nonuse of an easement combined with the failure to clear natural trees and brush is not enough to show abandonment of an easement. Desotell v. Szczygiel, 338 Mass. 153 (1958). Nor is the presence of mature trees sufficient to show that the servient tenant has reacquired the land, unless there is some showing that the servient tenant deliberately planted the tree on the right of way and succeeded in preventing the dominant owner's use of the easement for the statutory twenty-year period. Halvarson v. Teleen, 90 Mass. App. Ct. 1124 (2017).

No Comments

Leave a comment
Comment Information
  • Super Lawyers
  • Best Lawyers | Best Law Firms | U.S.News & World Report | 2019
  • Preeminent AV | LexisNexis Martindale-Hubbell Peer Review Rated For Ethical Standards and Legal Ability