A boundary tree is a tree that straddles the line between two properties. Generally, for a tree to be considered a “boundary” tree, the trunk of the tree must encroach on both properties. A tree whose trunk is completely on one owner’s property but whose branches overhang the adjacent owner’s property or whose roots invade onto the adjacent owner’s property is not a boundary tree. A tree does not have to start out as a boundary tree to become one:
a tree that is planted on one owner’s sole property can, over time, evolve into a boundary tree if the girth of the trunk during the natural growth of the tree causes the trunk to invade the adjacent property.
Boundary trees are often the source of disputes between neighbors. Often, one of the neighbors likes the shade, beauty and environmental advantages that the tree provides and the other neighbor dislikes the root invasion, falling leaves and berries and sunblock that the tree provides. One neighbor considers the tree beautiful; the other considers it a nuisance.
Determining if a Tree is a Boundary Tree
The first question to answer when faced with a dispute about a tree on or near the property line is to determine whether the tree in question is, in fact, a boundary tree. It seems that the answer should be simple to determine; however, it is often more complicated than it should be.
To determine if the tree is a boundary tree, you need to have a reputable property survey with clear property lines. Both property owners must agree as to the location of the property line – if there are “dueling” surveys, there must be some final determination as to thebona fide property line. Once, the property line is established to the satisfaction of both owners, you need to determine whether the tree trunk straddles the property line.
Resolving Disputes Over Boundary Trees
What is the recourse when a dispute between neighbors arises from a boundary tree? The general rule is that a boundary tree is co-owned by both property owners; therefore, both neighbors must agree on the course of action. (In another way of looking it: either owner can veto the desired action of the other owner.) If there is a dispute, you have to determine whether the boundary tree constitutes a legal “nuisance” that requires particular action.
The law regarding trees varies from jurisdiction to jurisdiction. Therefore, the law in New York may be different from that in Hawaii, California, Kansas or Connecticut. In some states, if one of the property owners removes or damages a boundary tree without the consent of the adjacent owner, the person who removed the tree can be liable for damages. Damages can be the cost of replacing the tree with a similar specimen [depending on the size, species and condition of the tree, that sum alone could be several thousand dollars]. Some states consider the action egregious enough that punitive damages can be awarded by the Court. Punitive damages can be very substantial since they are designed to punish improper behavior.
If the boundary tree is causing actual damage to the property of one of the adjacent owners, the person suffering the damage can seek court action to force the tree’s removal and/or reimburse them for the damages caused by the tree. Trees often damage fences that can be easily repaired but sometimes, tree roots can damage the foundations of homes, driveways or sidewalks that can be expensive and time-consuming repairs.
If you have a dispute with a neighbor regarding a boundary tree, the best course is to try and find some solution that both you and your neighbor can live with. In the absence of an agreement on the disposition of the tree, the neighbor seeking tree removal typically only has the legal means to force removal if they can conclusively establish that the tree is a nuisance under the law. If you find yourself in that circumstance, you should consult a local attorney in your area as they will be in the best position to advise you of the laws in your jurisdiction.