Question: My neighbor has a large tree and the tree roots are coming through my patio and breaking the cement. Can I get him to pay for the damage caused by the roots? What else can I do?
I am sorry to hear about the problem you are having with your patio. Let me address the issue of damages first and then we will talk about other actions you can take. In general, a tree owner can only be held responsible for damage if he had prior notice that a tree posed a threat or created a hazard. In this case, the ability to collect damages would depend on the notice your neighbor had about the problem with the tree roots. If you had warned your neighbor about the roots coming up on your property and he ignored you and then the roots caused the damage to your patio, you would have grounds to hold him liable for the damages. If you did not notify your neighbor until after the damage had occurred, then you cannot hold him liable for that damage, though you can hold him liable for future damage.
What else can you do? We recommend that you begin by contacting a certified arborist to determine the options for removing the tree roots or taking an action (i.e., cutting them) so that they will cease causing damage. Once you have that information, then you have two main options:
First, you have the right to remove any part of the tree that overhangs or comes onto your property as these tree roots do. You can retain an arborist to remove the tree roots or treat them in such a way that they will no longer damage your patio. If you act, you are responsible for the cost of the action; you cannot require your neighbor to pay any expenses. Also, the action you take cannot kill the tree. If you kill the tree, your neighbor might have a claim for damages and that requires you to pay for the replacement of the tree.
Second, you can contact your neighbor to request that he remove the roots or the tree. Take pictures of the damage caused by the roots. Then take pictures that show the damage and demonstrate that the damage comes from the roots of your neighbor’s tree. Prepare a letter for your neighbor. The letter should identify the tree and the damage caused by the tree roots. You should ask your neighbor to follow the recommendation given by the arborist. Advise your neighbor to contact his insurance company. Tell him that if he fails to do so, he can be held liable for any damage caused by the roots. Attach copies of the photographs and the arborist’s report.
Meet with your neighbor to discuss the arborist’s report and the issue with the roots. Hand him the letter. If he refuses to speak, then mail the letter both regular mail and certified mail.
The written letter and attachment puts your neighbor on notice about the damage caused by the tree roots. If he notifies his insurance company, they may require him to remove the tree or to do something about the tree roots on your property. His insurance company may pay for the removal of the roots. If he fails to act, you will have evidence that will enable you to hold him liable for further damage caused by the tree roots.
If your neighbor does not remove the tree or does nothing about the roots damaging your patio, and you want to force him to act, you will need to seek a court order. You can handle this yourself or retain an attorney. If you need help finding an attorney, you can contact your local bar association or an online resource such as Avvo.com.