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Real Estate Law
QUESTION: There is a huge oak tree in my neighbor’s yard, and its roots are pushing through my home’s foundation, causing considerable damage. Also, the tree blocks the view from my deck to a nearby common lake. My neighbors refuse to cut the tree down. What are my options?
-- Angela, Fairfax
ANSWER:
The law of “noxious” trees has recently changed in Virginia.
For 69 years, the precedent set by the case of Smith v. Holt held that when it appears a sensible injury has been inflicted by the protrusion of roots from a noxious tree or plant onto the land of another, the landowner has, after notice, a right of action at law for the trespass committed. The court went on to say, however, that when it appears that the roots and branches of a tree protrude onto adjoining land but no “sensible injury” has been inflicted, the landowner is not entitled to pursue any remedy in a court of equity. In that instance, then, the landowner would be bound by the rule prevailing at common law, which held that the landowner would bear the burden of protecting himself from protruding roots or branches.
For those many years, this meant that a landowner could sue only for an actual trespass and damage to their property already caused by a tree or other plant. Short of filing suit for actual damages, the landowner could cut back the branches of a neighbor’s tree to the extent that they hung over the property line.
In the 2007 case of Fancher v. Fagella, the Supreme Court of Virginia held that 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, overruling Smith v. Holt.
As such, this now means that you can request that the court require your neighbor to cut down or otherwise trim the tree so as to alleviate the imminent danger of actual harm to your property. Of course, you are required to show, by clear and convincing evidence, that actual damage to your property is in fact imminent.
A warning: This does not mean that you can waltz over to your neighbor’s yard and take an ax to their trees. You must avail yourself of the law by bringing suit for an affirmative injunction to remedy the situation. And, as before, you are permitted to trim the tree branches to the extent that they hang over your property line.
In response to Angela’s question, seeing as how the roots from the neighbor’s oak tree are pushing through her foundation, an actual trespass and not just an imminent danger is present. She can’t cut the tree down herself, but she can bring suit for that very remedy.
Angela also mentioned that the tree blocks her view to a nearby lake. Aesthetics alone is not sufficient for obtaining a court order to remove the tree.
Now, the above is simply a recount of the law pertaining to noxious trees. A pragmatic solution in these matters, whether it involves a situation of overgrown hedges, dead and leaning trees or unsightly shrubbery, is to simply ask the property owner to do the neighborly thing and prune their plants as necessary. It’s when they refuse that you should avail yourself of the law.
John Kent Kidwell lives in Herndon and is an attorney at the law firm of Kidwell, Kent & Curran at Woodson Square, -C Main St., Fairfax. He can be reached at 703-764-0600 or jkidwell@kidwellkent.com.
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