"Arborcide" and 4 other nasty tree fights
MSN Real Estate (www.msn.com), 2008

By MARILYN LEWIS, MSN Real Estate

Whether the trees on your property are stately and majestic or little more than glorified shrubs, you're probably emotionally attached to them. They cool your home in summer and buffer winter winds. They filter dust, prevent flooding and scrub the air of pollution.

And they can also be the root of some of the nastiest neighbor disputes.

What's to fight about? "Everything from encroaching limbs and roots to view obstruction to personal injury from falling trees to nuisance actions – dropping pine cones and sap – or creating a fire hazard," says Barri Kaplan Bonapart, a California attorney and mediator who specializes in tree disputes. "Anything you can imagine a tree can do, you'll have disputes around."

When one person whacks down another's tree, some call it "arborcide." Such fights become neighbor-versus-neighbor brawls. Consider the case of Douglas Hoffman, a Las Vegas retiree sentenced to up to five years in prison early this year for killing about 500 trees near his home. His homeowners' association had refused to let him remove the trees so he could enjoy a view of the Las Vegas strip.

For Youngstown, Ohio, attorney and magistrate Raymond Delost, the offender was the local power company. His wife, Maria, arrived home one day in July to find their electric utility sawing down 14 white pines the family had planted 18 years before, on an easement across their land.

"We planted them, we've enjoyed birds nesting in them, we've enjoyed the buffer between the homes and the fact that they keep down pollution and noise," says Raymond Delost, who is suing the utility for $10 million. "They keep light out and keep down the air conditioning. …There's a whole impact that goes beyond whether somebody violated an easement."

Indeed, Bonapart says most tree disputes aren't essentially about trees. "It's usually some other issue for which the trees become a lightning rod."

It's wise, then, to bone up on the law and know the available resources for keeping your own tree disputes from growing from polite disagreements to outright hostility. Here's a quick look, along with some insights on how to handle five common tree conflicts.

Break a state law protecting a tree and you could pay a $1,000 fine or spend as much as six months in jail. But laws dictating what you can and can't do to trees – on others' property and even your own land – differ enormously from city to city and state to state.

Although case law (or "precedent") really sets the rules, more cities and counties are passing tree laws spelling out what's required, what's forbidden and which trees can't be touched whether they're on your own land or your neighbors. Here are some examples:

• A "heritage tree" ordinance in Mill Valley, Calif., protects big redwoods, while nearby Sausalito lists redwoods as "undesirable" (they grow fast, blocking views)
  
  
• In Washington, D.C., you can't remove a tree unless it's dying, dead or categorized as a weed species. You must get permission from a certified arborist to cut a tree with a trunk 17 inches in diameter or bigger. Break the ordinance and you pay thousands of dollars.

When laws conflict in their fundamental aim, state law prevails, says Columbus, Ohio, attorney and arboriculture expert Victor Merullo. He's one of a small number of attorneys nationally specializing in tree law. A three-month subscription to his Tree and Neighbor Law newsletter gives access to a state-by-state summary of statutes and case law that's meant to guide homeowners and attorneys in tree disputes. (He also charges $27 for an educational phone consultation that includes a review of the pertinent local laws.)

You can also learn your local laws by asking at city hall or the county courthouse. And the Arbor Day Foundation lists contact information for urban community foresters, who give guidance on laws in their areas.

Even when the law's on your side, it's no help if the cost of enforcement – in lawyers' fees or in damaged relations – is prohibitively high.

That's where an arborist (sometimes called a "tree surgeon") may be able to help.

Arborists are certified by the International Society of Arboriculture, the American Society of Consulting Arborists or both. There are two types of arborists:

• Consulting arborists sell only their knowledge. They don't perform tree work and they take pride in their independence from tree services. If you're facing a potential neighbor conflict or if legal liability is at stake, search the ASCA referral directory for a registered consulting arborist with an "expert witness and litigation" or "forensic investigation" designation. Expect to pay from $75 to $300 an hour for a consulting arborist.
  
  
• The ISA trains and certifies contracting arborists, who perform services –pruning, fertilizing, spraying and removing trees and shrubs. A contracting arborist may charge nothing for a consultation, making money instead by performing the necessary work. (Fees start at around $35 to $50 and can run $100 or more per hour per worker.) You run the risk of being sold unneeded services, so check an arborist's ISA credentials here or locate a credentialed tree service in your area from the ISA's list of professionals. (Note: They've paid a fee to be included).

Certified arborists of both types can help solve tree disputes. "Typically, there's something I can do to make it easier for both parties," says Fred Haefele of Helena, Mont., a retired certified arborist. The arborist should advocate the health of the tree. "An arborist can be an intermediary – the tiebreaker," Haefele adds.

Here's a look at five potential tree disputes in which you could find yourself, along with their possible solutions.

Conflict No. 1: Your neighbor cuts down your beloved oak.
When a neighbor whacks your favorite tree, you can sue for two kinds of compensation:

• Compensation for a tree's loss. Courts rely on an arborist's expert opinion to put a value on a lost tree. Trees cut for timber are valued differently from a backyard maple. Otherwise you must prove the tree's dollar value to you. Trees can enhance a property's value considerably – as a sound barrier, for instance, or by increasing the aesthetic desirability. A well-established shade tree that's the focal point of a property can add from $5,000 to $25,000 to the value of a home, Haefele says. The arborist also takes size, age, health and species of the tree into account to put a value on it. Some states – Ohio is one of them – let you sue for three times the tree's value if someone recklessly trespasses on your land and kills or hurts the tree (say by over-pruning without your permission). And in Washington state and Louisiana, you're entitled to extra money if you can prove the tree had sentimental value – a wedding gift, for example, or planted to commemorate a child's graduation or the death of a beloved spouse.
  
  
• Damages for trespassing. If your neighbor trespassed on your property and you can prove it, you may also be able to collect punitive damages, fines imposed by juries to punish particularly outrageous behavior.
  
  

Lew Bloch, a landscape architect and consulting arborist, often gets calls from indignant homeowners fuming that, for instance, the neighbor has sawed off limbs from their beloved old oak. "They say, 'They trespassed. I want to sue 'em,'" and Bloch, author of "Tree Law Cases in the USA," explains that, heartbreaking as it is, the monetary damage may amount to just a few hundred dollars.

The bottom line: Ask yourself if a lawsuit – and the risk you may not be able to settle or win – is worth the expense and all the neighborhood strife. Costs for taking your case to court, including lawyer fees, court costs and expert witness testimony, begin at around $5,000 to $7,000. In a jury trial, or when an injury or death is involved, costs run much higher and can include paying an attorney one-third of the court's award.

Conflict No. 2: Your neighbor's tree is starting to block your view
In most places, you have no right to a view, so you're probably stuck. Some community associations and a few towns – most of them in California – protect residents' views. Hilly, costal Rancho Palos Verdes, Calif., is one: Property owners have to keep trees trimmed so as not to block a neighbor's vista.

You can offer to buy a view easement – an unobstructed line of sight – from the neighbor, negotiating on a price. But to protect yourself over the long run, you'd probably have to ask the neighbor to add a restriction to their deed. Few property owners are willing, since deed restrictions subtract from a property's value when it's sold.

In the state of Washington you could try to prove the neighbor maliciously planted a row of trees to block your view. Washington law requires anyone who installs such a "spite fence" to remove it.

Your best option may be appealing to your neighbor's sympathy. If you don't already know the neighbor, take time to establish communication first. "Don't make your first contact something that you want or need from them," Bonapart says. "People can find that off-putting."

The bottom line: When the law's not on your side, your history as a good neighbor really counts. As mom used to say, you'll catch more flies with sugar than vinegar – especially when you're asking for a favor.

Conflict No. 3: A tree that straddles your property line needs to be trimmed
A tree that straddles a boundary equally is owned by both neighbors, who get to share any costs involved, Merullo says. The test is where the trunk of the tree emerges from the ground. If the tree comes up on the boundary line between properties, or if it grows into the boundary line, it is a jointly owned tree in most U.S. jurisdictions.

Hire a surveyor to identify the property line (Drive stakes in the ground to mark the boundaries so you'll remember where they are). If the tree's yours, you've got the right to trim or even cut it down.

If it's the neighbor's, you can remove branches and even roots – only up to your boundary line. However, there is a big "but": You have to act "reasonably." Merullo tells of a man who, troubled when his neighbor's tree roots broke up his blacktop driveway, cut out the roots three feet under his property, killing the tree. He's had the right to cut the roots but he could reasonably have solved the problem by trimming only shallow roots. When the tree's owner sued him, he lost.

The bottom line: You can take steps to use and enjoy your property but you can't deliberately injure someone else's tree. For guidance, consult an arborist.

Conflict No. 4: Your damaged tree loses a limb, crushing the neighbor's fence
Some trees are a liability, says Bloch, the arborist. It's your responsibility to remove a tree that's diseased or structurally unsound. If a damaged tree causes harm, the tree's owner – or insurance company – pays for the cleanup, repairs and any injuries.

It's not obvious, though, if a tree is safe or dangerous. "It could be healthy with plenty of leaves but be so structurally unsound – hollow, or with branches that are not attached properly – that it's ready to break apart – maybe in a storm, maybe not in a storm," Bloch says.

Common law – based on court decisions – requires you to inspect each and every tree on your property to know if it is a healthy tree, Merullo says.

The U.S. Department of Agriculture recommends inspecting trees yearly. "How to recognize hazardous defects in trees," a bulletin written by Minnesota Department of Natural Resources, the USDA and the Forest Service, tells what to look for. "The best way to correct a hazardous tree is to hire a professional arborist," it says.

"Insurance companies have gotten wise," Merullo adds. "If they can determine that the owner could have or should have known the tree was dangerous, they'll exclude coverage (for a claim)."

The bottom line: Hire an arborist to inspect your trees yearly and remove any that are dangerous. Cities must inspect their trees, too, which is why many now have their own arborists or "foresters."

Conflict No. 5: A windstorm sends your neighbor's healthy tree crashing onto your roof
Everything boils down to one question: Was the tree really healthy?

If yes, you're on hook, even if you must shell out $10,000 for a new roof. After all, some things in life just can't be anticipated – "acts of God," they're called. And, if a branch blows into your roof and breaks the chimney, well, you've had the chance to trim branches on your side of the property line.

The bottom line: Inspect your trees and appropriately prune any potentially dangerous limbs. Also, remove the trees if they're unhealthy.

Reprinted with permission from MSN Real Estate. © 2008.