Tree Disputes

I hear the wind among the trees
Playing the celestial symphonies;
I see the branches downward bent,
Like keys of some great instrument.
~Henry Wadsworth Longfellow

Neighbor Disputes

Unfortunately, trees can bring disharmony to neighbors when branches or roots encroach over or on the land of another or interfere with views. There are no statutes in Arizona that address tree encroachments; however, there is “common law” in Arizona and every other state that does. Common law comes from trial court cases that are appealed to a higher court. There is one case in Arizona that addresses tree encroachments: Cannon v. Dunn (Arizona Court of Appeals, 1985). This case establishes that Arizona follows the generally-accepted rule that a landowner who sustains injury by the branches or roots of a tree intruding from another property onto his, regardless of their non-poisonous character may, without notice to the tree owner, cut off the offending branches or roots at his property line.

If you are going to remove encroaching branches or roots from a neighbor’s tree, consider the following:

1. Start with a written request to your neighbor for help or abatement, which explains the need for tree revision (i.e., “branches drop debris that plugs up my roof drains” or “roots are breaking up my patio”).
2. If the neighbor isn’t responsive, consult with an arborist or similar expert as to the tree’s condition and advice on extent of trimming that can be safely done. Get the expert’s opinion in writing.
3. Photograph or videotape the encroachment both before and after you have trimming done.
4. Have an expert do the work.

The injured landowner may not cut the tree down or cut its branches or roots beyond the extent to which they encroach upon his/her land. Thus, a property owner aggrieved by his neighbor’s tree may not cut the tree down or cut its branches or roots beyond the extent to which they encroach upon his land.

Common mistakes that the tree challenged can make that can create exposure to a claim for damages are:

1. Pruning the tree at the top (for an increased view, light or greater exposure) can structurally harm a tree. Pruning lower branches and leaving growth only at the top can also increase the risk of a structurally unsound tree that could topple in wind or rain.
2. Cutting roots, which may solve your problem, can also weaken a tree, causing it to fall.

Tree Issues in Homeowners Associations

An Association’s Board of Directors typically is burdened by tree issues, particularly when there are a number of trees in the common area or on other areas of Association responsibility that are mature and too large for the area in which they are planted. Some of the common tree problems that face Associations are:

1. Need to remove a tree that a homeowner wants to remain. The Association generally is responsible for maintaining trees on its common areas. Oftentimes, property owners adjacent to a common area do not want a tree removed that has been providing shade and beauty to their lot. In other cases, owners want trees removed from common areas to restore their view. Many Boards of Directors find themselves in a “no win” situation – some owners are angry because the trees are not being pruned or removed and other owners are angry because they are. As with most conundrums of this nature, the Board should get expert advice, allow community input, and create a reasonable policy that is consistently followed.
2. Removing a tree because it is a liability. If a common area tree causes damage on a private lot, the Association may be liable for damage done.  Therefore, it is important for the Board to get expert advice on the health and placement of common area trees.
3. View  issues. There is no right to a view unless some promise of view protection is in the Association’s governing documents. Some CC&Rs state that trees need to be trimmed so that there is no “substantial interference with a material view” or some similar language. Many Association Boards have had to embark on a research and a public relations campaign that resulted in a policy that would meet the intent of the CC&Rs and remove the subjectivity that often is at the root of view issues.
4. Maintenance issues. In many cases, the Association is responsible for maintaining landscaping in the front yards of the private lots. When too many trees were planted during the development phase, or trees were planted in the wrong places, a Board suddenly can be faced with costly and widespread tree removal or pruning. Some Associations have taken the position that “maintaining” is not “removing and replacing”. In other cases, Associations have taken the position that landscaping maintenance does not include tree pruning or removal.

After our rainy summer, tree growth has brought some of these issues to the forefront. Unfortunately, there are no bright line rules that apply to all situations. A Board of Directors needs to study the pertinent governing documents, consult professionals, be fiscally prudent and enter into conversations with community members to establish a sound tree policy.

Written by: Carolyn B. Goldschmidt
October 2012