Affordable Housing Institute : US

For the last month or so, the rear of our driveway has been under mortar attack from the squirrels overhead. Frenetic, territorial, and hyperactive, they’re in an orgy of gathering, bombarding us with acorn husks, half-eaten nuts, wax berries, leaves, and twigs. Once a week Nancy blows the driveway, and within half a day it’s littered again.

 

As far as I’m concerned, once they hit the ground, they’re mine

 

September is the squirrels’ feast time, where the canopy of branches, still leafy, is an endless network of highways over which they cavort with no thought whatsoever to whose trunks and branches they traverse. But beneath them, we care, since where they fall determines who cleans which walk. A year ago we took down a massive elm that was dead or nearly so, in an operation that took several hours and required extensive bracing, guying, and care by a marvelous tree specialist – that’s the sort of thing you do when you own a home, because though trees are long-lived, they do eventually die.

 

 

What if the elm tree hadn’t been on our lot, but its branches overhung us: could we cut them? It turns out the law on this is very complicated, now changing, and more significant than it might at first seem, as detailed in this lighthearted story from the Washington Post:

In the suburbs, there are few issues that can cause as much rancor and neighborhood discord as a deep-rooted, mature tree that has no regard for the neat boundaries of a property line.

 

Who pays if your neighbor’s tree damages your house?

 

Somebody’s making an insurance claim

 

Yesterday [September 14 – Ed.], the Virginia Supreme Court weighed in on the contentious issue with a decision that overturns a nearly 70-year-old precedent. Now, for the first time, homeowners can sue to force a neighbor to cut back branches or roots or take out the tree altogether if it poses a risk of “actual harm” or an “imminent danger” to their houses, the court ruled. Tree owners can now be held liable for any damage caused by the tree.

The reasoning? The court realized just how much Virginia has changed.

 

The justices ruled in a Fairfax County case that the old law made perfect sense in a rural world, but now, with townhouse and condo developments springing up on former farmland, with infill development in cities and densely packed neighborhoods, the law “is unsuited to modern urban and suburban life.”

Among the dozens of indicators distinguishing rural from urban environment, dimensionality must be one. The rural world is two-dimensional, tied to the terrain. Move people into cities and as land becomes scarcer, it becomes more valuable, so the direction to build is up. This was true in Rome, which created the world’s first apartments, the Roman insulae, and put the servants’ quarters on the top floor, the most stairs to climb. The more urbanization, the more dimensionality – the higher up we go. Today we think nothing of people who pay several million dollars for the right to occupy a cubic space several hundred feet above Manhattan, or that the rights to develop that air space can be bought and sold like tangible property.

 

Going up changes our approach to law and entitlement. Bounding two-dimensional space is easy: any fence or wall will do.

 

“Good fences make good neighbors.”

That gets complicated when a tree starts flouting these neat boundaries by invading from above or below:

 

It all started back in 2003, when Richard A. Fancher bought a townhouse in Cambridge Station in Fairfax. He had noticed the big sweet gum tree in his next-door neighbor’s 17-by-17-foot back yard, but, being in a hurry to buy, he didn’t give it much thought.

 

Then he started noticing that his sunken patio, which sat at a lower elevation than his neighbor’s, began to crack, he said in court papers. And the brick retaining wall between the two houses began to lean. Fancher got married in 2005, and he and his wife wanted to renovate. That’s when, he says, engineers found tree roots from the sweet gum tree in the sewer pipes. They found tree roots in the electrical system. They found that the pressure from the mass of tree roots was cracking the foundation, the court papers say.

 

“We kept fixing stuff, but the problems kept coming right back, because of the weight of the tree and the roots,” said Michelle Cook-Walker-Fancher. “Sweet gum roots are very aggressive. They look like baseball bats, like those things that the cavemen in those Geico ads carry.”

 

Stereotypes are so hurtful

The Fanchers called Saunders to trim the branches to the property line. He told them that the 60-foot tree was only at mid-maturity and could grow to be 140 feet. They foresaw years and years of continuing problems.

 

The Fanchers said they asked their neighbor, Joseph Fagella, to cut the tree down. Fagella, who did not return phone calls for comment, declined. The Fanchers decided to sue. But under the old precedent, they didn’t have much recourse.

 

In fact, trees as encroachment are governed by centuries-old urban laws that apply an almost Archimedean principle. Our rule of law is normally that a property’s owner has title “upward to infinity, downward to the center of the earth.”

 

In the past, most states used the “Massachusetts rule,” which held that if a tree grew on your property but the branches hung into your neighbor’s yard, that neighbor could cut them back as far as the property line.

Upward to infinity.

 

My property rights go to infinity … and beyond!

If the roots cracked the neighbor’s patio or if the branches ripped their siding, it was their problem.

Or they could cut downward and eliminate the invading roots.

 

And if the neighbors’ pruning killed your tree, you could sue them for damages.

That’s already complicated, isn’t it?

 

Maryland and the District still follow the Massachusetts rule, according to officials there.

As you might expect, since these statutes arise from common law, they derive from traditions and rules older than the country itself, so they vary by state:

Virginia’s 1939 law was slightly different. Under that law, which was overturned yesterday, a landowner could sue a neighboring tree-owner only if the tree was “noxious” and caused “sensible injury.” A big problem, however, was that no one ever defined a “noxious tree.”

 

You might start by looking in Midtown New York …

The Fanchers argued that the sweet gum was “noxious” because of its location. They petitioned for an injunction to make their neighbor remove the tree and roots and sued for damages. Fairfax County Circuit Court denied the injunction in 2006, citing the old rule. The Fanchers appealed to the Virginia Supreme Court.

“We’re living in a very densely populated subdivision in Northern Virginia,” Cook-Walker-Fancher said. “Virginia is growing in leaps and bounds — the roads are testimony to that with all the traffic. We can’t have 17-foot back yards with 90-foot trees.”

 

Yesterday, the court adopted a new rule and sent the Fanchers’ suit back to Circuit Court. The rule, modeled after a 1981 case in Hawaii, says that a neighbor can’t sue a tree owner for the little annoying things — “casting shade or dropping leaves, flowers, or fruit.” But it’s a different story if the tree becomes a nuisance. The owner of a nuisance tree “may be held responsible for harm caused to [adjoining property], and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance,” the court said.

 

The new Virginia decision’s significance lies not so much in its arboreal implications, but rather because of the principle it has enshrined even without mentioning the words: interdependence and ecosystemic health. That principle has implications far, far beyond one sweet gum tree.

 

[Continued tomorrow in Part 2.]

 

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