Aloha From Virginia: What You Need to Know About Your Neighbor’s Tree Encroaching on Your Property
Sometimes, neighbors are not so neighborly. What do you do when your neighbor’s tree is encroaching on your property or poses a real risk of danger to life or limb (pun intended)? While your neighbor is comfortably sipping mint juleps under the shade of their large Virginia magnolia tree, you’re up late researching the best anemometer (yes, that’s a real thing) so you can measure the wind speed to know whether you should crawl into your bathtub and pull the mattress over your head (yes, that’s also a real thing, at least in the turbulent, tornadic, Midwest!) and await the sounds of your house or car being demolished by your neighbor’s tree.
Thankfully, you’ve found your way here. Reading this article will help to avoid the inflated cost of that shiny new anemometer and may save you a pulled muscle from tugging your mattress off the bed and squeezing it into your bathroom.
As is true with most laws, there are several ways that States view your legal rights as a landowner when it comes to a neighbor’s tree or vegetation encroaching on your property. Here are a few and their differences.
1. The “Massachusetts Rule” – this legal rule allows landowners the right to “self-help” where a neighbor’s trees or vegetation are encroaching on your property. This rule, however, is the only remedy for a landowner. This means you can cut your neighbor’s trees or branches, but only at the point where they cross over into your property, however, you likely have no other remedy to keep this from reoccurring when those trees or vegetation grow back. If you find yourself in this jurisdiction, investing in a sharp pair of shears (no anemometer needed) or a marrying into a family with a tree trimming business may be beneficial.
2. The “Restatement (Second) of Torts Rule” – this legal rule shifts the burden of eliminating any “artificial” vegetation that is encroaching on your property. Under this rule, it is the duty of your neighbor to control any encroaching vegetation that is “artificial”, which is considered any vegetation that has been planted. This rule does not apply to “natural” vegetation. Here, the argument focuses on what is artificial versus natural. So, counting rings in trees to determine their age may be a helpful skill in these jurisdictions.
3. The “Hawaii Rule” – this legal rule simply states that your neighbor’s encroaching trees or vegetation are generally not considered a “nuisance” but they can become a nuisance if the encroaching tree or vegetation causes actual harm or poses an imminent danger of actual harm to your property. Under this rule, waiting for your neighbor’s tree to drop and cause damage to your property or proving to a judge that your neighbor’s tree is an imminent danger must occur first before you can take any action as a landowner.
As with most Virginia laws, we like to do things our way and we like to do them that way for a very long time. Amazingly, however, the Virginia Supreme Court changed the law in Virginia in 2007. From 1939 to 2007, the law in Virginia used to be—let me repeat this for our eager readers—it used to be the law in Virginia that landowners could engage in self-help to remove encroaching trees or vegetation, however, there was no other legal remedy (e.g., having your neighbor remove the tree or vegetation or have them pay for damages) unless the trees or vegetation were considered “noxious”. What is a “noxious” tree, you are asking? Well, that is exactly the question the Virginia Supreme Court raised in Fancher v. Fagella when it overturned the old 1939 law. “Noxious” had been determined in some cases to be vegetation that was particularly aggressive, smelled bad, or offended the health or morals of a neighbor. The Court raised the issue that determining whether a tree or vegetation is “noxious” is subjective to the individual neighbor. To put it simply, landowners’ olfactory glands or their sense of smell are not equal. What is “noxious” to one neighbor, maybe innocuous or even pleasant to another neighbor? I mean, we all have that neighbor that loves poison ivy. Under the old law, in order for you to do more than “self-help” and initiate a nuisance cause of action before a Virginia court, you had to prove that your neighbor’s encroaching tree or vegetation was, in fact, noxious.
Today, however, that is no longer the law in Virginia. The Virginia Supreme Court essentially determined that the “noxious” threshold requirement was itself “noxious” and it adopted the Hawaii Rule. The Court stated, “Continued reliance on the distinction between plants that are ‘noxious’ and those that are not impose an unworkable standard for determining the rights of neighboring landowners.” Fancher v. Fagella 274 VA. 549, 550 (2007).
Today in Virginia, landowners can still utilize “self-help” as a remedy for a neighbor’s encroaching tree or vegetation onto their property. However, landowners also have additional remedies if the encroachment constitutes a “nuisance.” This means that if your neighbor’s tree or vegetation is considered a nuisance your neighbor can be held responsible for any harm caused to your property by the encroaching vegetation or your neighbor may be required to trim or even cut down the tree or vegetation. Essentially, now if you want your neighbor to pay for the damages or the trimming or removal of the vegetation, you must prove that the encroachment is a nuisance. The Virginia Supreme Court stated that “Encroaching trees and plants are not nuisances merely because they cause shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, 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.” Id.
We can all probably agree that Hawaii had it right to begin with and adopting this new rule makes it simpler. However, there are many additional things you should continue to consider as you maneuver through the contours of neighbor law in Virginia. Just like neighbors, every case is different. There are many additional factors that should be considered as you decide on the best path forward in your particular case. HOA/POA rules and regulations, easements, and what classification of “neighbor” you have next to you (e.g., residential, commercial, rural) are all factors that must be considered as you make these decisions.
Here at Jones, Walker, & Lake, we pride ourselves on knowing about these areas of the law so that you can rest easy and save the money you may spend on an anemometer towards an actual Hawaii vacation. Don’t let your neighbor ruin that Hawaii vibe.
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only. Laws frequently change and this post may not reflect the current law in Virginia or your jurisdiction. No information contained in this post should be construed as legal advice from Jones, Walker, and Lake P.C. or the individual author, nor is it intended to be a substitute for legal advice on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s licensing jurisdiction.