Hi yang_ylvp,
I spent waaaay too much time on this, and I still don't have a clear
answer with perfect sources, but I can answer your questions with a
very high degree of certainty.
FIRST: I am convinced your neighbor is wrong.
1. If I don't want to cut down the tree, can my neighbor force me to?
NO, only if it's dangerous. In fact, in some cities in Texas, large
trees have protected status. Yours would definitely qualify if
Missouri City has such an ordinance. The other factor is you are a
new owner. This tree has obviously been growing up to this guys garage
for many years, or has already been damaged way before you moved in.
Possibly the prior owners refused to pay and now he's trying you.
Just how bad is it, are the roots "just getting there" or is there a
well developed root system that is finally doing damage?
1b. Is my liability to take care of the tree root that is in his property line?
The law has always allowed him to trim the roots that extend onto his
property, as long as he does not harm the tree. Trees have rights!
If he harms or kills the tree, trying to control the roots, you can
can bring suit against him. Also in your favor is the fact he chose
to build the garage where he did, knowing the tree was there.
2. If I were to cut this tree down, do I need permission from anyone?
YES. I'd call the city and county to be sure they are not protected,
and the homeowners association.
3. Who should pay for cutting down the tree? my neigbhor, or me?
It won't come to that, unless you dislike the tree. I'd call my
homeowner's insurance company/agent. They'll have some advice as to
how to deal with the neighbor, might even talk to him on your behalf.
He could have pruned the roots on his side of the property line, or
installed root guards to cause the roots to drop a couple feet. ~~He
didn't have to wait for damage.~~
Also, consider this:
If the neighbor had brought this up to the last owner/seller prior to
your purchasing the home, and this was not disclosed on the "Seller's
Disclosure" then you may have an action with the prior owner....If the
neighbor tried to get them to pay, and they refused or ignored him,
then they were _aware_ of a potential claim --and were legally
obligated to disclose this to you.
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REFERENCES
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..."Q. Can I trim the branches off a neighbor's tree that overhang my property?
http://www.ci.vancouver.wa.us/parks-recreation/about/faq/urbanforestry.htm
A. Always be a good neighbor and work with your neighbors if you have
any issues with their trees. You have the right to trim tree branches
up to the property line as long as you do not harm the health or the
structure of your neighbors tree. You may not go onto the neighbor's
property or destroy the tree itself. Trees are considered property and
a person who intentionally injures someone else's tree is liable to
the owner for property damage..."
The City Public Works Department asks you to call before trimming a
tree that encroaches onto city property. I bet they have some
information:
..."Contacting the Public Works Department regarding any questions you
might have about tree trimming or any other related subject.....Any
questions concerning code enforcement can be directed to the Planning
Department at 281.208.5548. Questions concerning tree trimming can be
directed to the Public Works Department at 281.261.4331..."
http://www.ci.mocity.tx.us/depts/publicw/treetrim.htm
You can install RootGuards, but frankly your neighbor saw this coming
and should have installed them on HIS property years ago.
Root Guard
http://www.terram.com/uploads/publications/117.pdf
..."Protect pavements, underground
services, walls and foundations
from the damage that is caused
by tree roots..."
Getting to the Roots of a Tree Problem
http://www.nolo.com/lawcenter/auntie/questions.cfm/ObjectID/649F1AD3-BD54-4CBE-A6AD221B68973BEA/catID/D0B308BB-D553-438E-94E8D66498A911D7
Tree Law: Can You Touch Your Neighbor's Flora?
http://www.uslaw.com/library/article/TNPPropertyCol0725.html
..."You May Exercise Self-Help
The courts throughout this country have made it clear that you can
exercise self-help. You have the right to trim the branches, or remove
the tree roots, without the neighbor's consent, but only to your
property line. Usually, in other instances, courts frown upon
self-help. For example, in most states, a landlord cannot merely throw
a tenant out and change the locks.
The Maryland Court of Appeals decided an interesting case in 1988. A
landowner brought an action for nuisance, negligence and trespass
against his neighbor for damage to the owner's building caused by
encroachment of trees, vines, roots and other plants and debris. The
Court of Appeals ruled that the only right the landowner had in this
circumstance was a self-help remedy and that he could not take the
adjoining neighbor to court.
The 'Massachusetts Rule'
Lawyers know this as the "Massachusetts rule;" it limits the adjoining
landowner's remedy to self-help. According to an early Massachusetts
case:
"The remedy is in his own hands. The common sense of the common law
has recognized that it is wiser to leave the individual to protect
himself, if harm results to him from this exercise of another's right
to use his property in a reasonable way, than to subject that other to
the annoyance, and the public to the burden, of actions at law, which
would be likely to be innumerable and, in many instances, purely
vexatious."
Thus, in the great majority of states in this country, if your
neighbor's tree roots are coming onto your property, or if the
neighbor's tree limbs are hanging over on your side, you have the
absolute right to cut down the tree limbs or remove the roots--but
only to the property line.
Under this rule, even if your property is destroyed, you do not have a
case against your neighbor unless one of these things is present:
You can prove that your neighbor was malicious and permitted a willful
destruction of your property, or
You can demonstrate that the tree will die if the roots are cut on
your side of the property. In this case, there is a possibility that
the tree may fall, causing further injury to person and property.
The 'Virginia Rule'
There is a slightly different approach, known as the "Virginia Rule,"
that is taken in some places. Under this approach, the landowner is
limited to a self-help remedy unless the tree or plant is "noxious."
The courts in Virginia, which crafted this rule, have held that if the
protrusion of roots from a noxious tree or plant inflicts injury on
the land of another, that landowner has, after notice to the owner of
the tree, a right of action at law.
Again, in simple English, you may be able to sue your next-door
neighbor for damages, if you have given the neighbor notice of the
"noxious" condition, and the neighbor has refused to take action. The
dilemma with the Virginia law, however, is that there is no definition
of "noxious." Because of this problem of interpretation, most of the
other jurisdictions in this country have rejected the Virginia rule.
But even under the Massachusetts rule, there appears to be an
exception for dangerous, dead trees. Many states have permitted a
landowner to go to court against a neighbor to force that neighbor to
remove a dead tree. As one court so aptly stated:
"Although the land owner may have the right to cut back overhanging
branches to the boundary line, in the case of a dead and dangerous
tree, it may be more sensible to require the owner of the tree to
remove it in its entirety, or to be liable for damages. It would be
futile to require the neighbor to remove a portion of the tree to the
boundary line leaving the hazard of a large portion of the total tree
to remain in a threatening position."
Only to the Property Line
Thus, self-help is permitted in all jurisdictions, but only to the
property line. And unless you can prove that there is a dangerous
condition on your neighbor's property that cannot be corrected by
self-help to the boundary line, you will not be successful if you take
your neighbor to court.
In 1988, the Maryland Court of Appeals indicated its strong reluctance
to expand a property owner's rights against his neighbors, however, by
not granting a landowner a cause of action every time tree branches,
leaves, and shrubs encroach upon or fall on his property. According to
the Court of Appeals, "we have gotten along very well in Maryland, for
over 350 years, without authorizing legal actions of this type by
neighbor against neighbor." ..."
Dig into tree root issue before damage is done
By RONALD LIPMAN - Copyright 2006 Houston Chronicle
http://www.chron.com/disp/story.mpl/business/lipman/3844974.html
Invasive Tree Roots
What to do when the neighbor's trees...
http://www.thisoldhouse.com/toh/tvprograms/asktoh/qaarticle/0,16588,462455,00.html
FAQ's for Homeowners - Can I keep my neighbor's tree roots out of my yard?
http://www.deeproot.com/faq/faq.php?SL=faq&BL=1
..."Maybe. Some of the key elements in this scenario are whether it is
a new tree that is not yet (or very recently) planted, or an
established, mature tree. The distance from the tree trunk to the
property line, state law, and your goals are all important factors. We
strongly urge consulting with an ISA Certified Arborist before taking
any action. You can find an arborist in your area at
http://www.isa-arbor.com/findArborist/findarborist.asp. Please contact
us with the details of your site by e-mail at info@deeproot.com or
telephone at 800.458.7668..."
So, there's a ton of information, I think you're in the right, and a
few ideas about where to start calling. Good Luck!
~~Cynthia
Search strategy:
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