Tuesday, October 20, 2020

My Tree Has Fallen on My Neighbor’s House and It Can’t Get Up

LAW MATTERS

 

 

Overhanging branches and shrubbery are all too often the subject of battle between neighbors. The property owner with a tree loves the tree. The neighbor, not so much when limbs and leaves have to be cleaned up. Ultimate unhappiness results when a limb or even a tree itself falls onto and damages the neighbor’s property.

Florida property owners are generally not liable for what is outside of the land or problems caused by trees and other plants growing on their land. The remedy for a distressed neighbor is to cut the offending vegetation back to the property line, including roots or branches that encroached onto the neighbor’s property. Florida courts have explained that Florida law makes it the responsibility of the individual to protect himself from damage, rather than open the courts to a possible floodgate of litigation battles. Which in many cases would be filed to merely annoy or bother a neighbor.

 

 

The Florida case most cited as establishing this rule is Gallo v. Heller. In that case, Gallo claimed that the branches and roots of Heller’s ficus and melaleuca trees encroached onto her property, damaging a roof and house. She claimed tree roots caused her cement walkway to crack and the branches blocked the sun causing her plants to die. The melaleuca leaves dropped on her property and caused her pet Afghan hound to contract a severe allergy.

The court explained that the rule in Florida is that a possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner’s protection is to trim back the vegetation at the adjoining owner’s own expense, all the way to the property line. The court quoted from a Massachusetts decision as the rationale for the approach to be “It is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

The self-help right to trim back vegetation to the property line may apply if the trimming kills the encroaching vegetation. This author could not find any Florida case directly on point, but there is at least one case with a tree on the property line. That case is Elowsky v. Gulf Power Company.

In 1965, Mr. and Mrs. Dedakis asked Gulf Power to remove a tree that was directly on the property line between their home and the home of James Elowsky. Gulf Power Company was happy to oblige, since it appears the tree had to be trimmed around power lines anyways.

Mr. Elowsky liked the tree. He was a city policeman who often worked the night shift. The tree shaded and cooled his bedroom. After it was removed, Mr. Elowsky had difficulty sleeping due to increased heat.

Mr. Elowsky sued Gulf Power Company for trespass. He claimed Gulf Power Company wrongfully entered his property and took “his” tree. Mr. Elowsky put on evidence that his property was reduced in value by $200 plus loss of the ornamental value of the tree and its use for shade.

The court awarded $500 to compensate Mr. Elowsky for both reduced value of his property and loss of benefit of the tree. The court explained, damages in these cases are not limited to reduced value of the property after removal, but also the loss of ornamental value and “convenience and comfort” provided by the tree.

IfthetreehadbeensolelyonMr.Elowsky’s property, the court might also award the value of the lost tree or cost to replace the tree.

The result can be different if damage is caused by a dead tree or vegetation that is not in good health. Although there is a lack of reported decisions involving dead tree damage, the consensus of scholarly opinion in Florida is that if a dead tree falls on a neighbor’s property and damages the neighbor, the owner of the property where the dead tree was originally located is responsible for the damage. The same logic would seem to apply to dead branches. It appears that not tending to dead trees or branches that end up damaging a neighbor’s property is negligence. Not tending to living vegetation is not.

The same rules apply when a hurricane roars through. But, adding insult to the damage caused by a hurricane, when a neighbor’s tree crashes through screen enclosure or roof, the recipient also bears the burden and expense of tree removal and disposal.

If Irma brought you a new tree, your neighbor’s liability to pay your deductible will literally be a question of life or death. If the tree was dead before you got it, that death breathes life into your claim against the neighbor. If not, you not only get the tree, but also the expense.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.

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