Robert Nislick By Robert Nislick
Massachusetts homeowners frequently have questions about the ownership of trees on their property and the right to cut overhanging branches from a neighbor’s tree.
Here are some of those questions, with answers, based on Massachusetts law.
Question: If a tree trunk is wholly on Alan’s property, who owns the tree?
Answer: Alan owns the tree. “Where the trunk of a tree stands wholly on the land of one proprietor, he has been deemed the owner of the entire tree”. Levine v. Black, 312 Mass. 242, 243 (1942).
Question: Alan and Bill are neighbors. The branches of Alan’s tree extend over the property line onto Bill’s side. Can Bill cut the branches of Alan’s tree?
Answer: Bill can cut the branches of Alan’s tree to the extent they are on Bill’s property. “[T]here is no doubt of the right of the adjoining proprietor to cut off limbs and roots which invade his premises.” Levine, 312 Mass. at 243. “Notwithstanding the legal ownership of the property, the overhanging branches of the plaintiff’s tree can be cut to the property line by the abutter.” Macero v. Busconi Corp., 12 Mass. L. Rptr. 521 (2000).
Question: Does Bill have to ask Alan’s permission before cutting the overhanging branches?
Answer: No. “His remedy is in his own hands.” Michalson v. Nutting, 275 Mass. 232, 234 (1931). “Should the roots or branches invade or overhang the land of another, that party has a definite right of self-help to trim the roots and branches to the extent they are on his property.” Bassin v. Fairley, Land Court Miscellaneous Case No. 11 MISC 451773 (AHS) (Sands, J.) (June 17, 2014). However, even though he doesn’t have to, Bill may want to consider discussing it with Alan beforehand so as to maintain neighborly relations between them.
Question: Carol and Debbie are neighbors. The trunk of a tree sits on both properties. Who owns the tree?
Answer: Both Carol and Debbie have legal interests in the tree. Where, “the trunk stands across the boundary line . . . [i]t has generally been said that under these circumstances both parties own the whole tree as tenants in common.” Levine, 312 Mass. at 243.
Question: What rights do Carol and Debbie have to trim overhanging branches?
Answer: They generally have the same rights that anyone has to trim overhanging branches. “[I]t is difficult to see why either owner should have any less right to cut off branches and roots than he would have if the trunk stood entirely upon the other’s land.” Levine, 312 Mass. at 244.
Question: A tree straddles the property line of Edward and Frank. Edward wants to remove it completely. Can he?
Answer: Most likely not. “Each of the parties held a legal interest in that part of the tree on his own property but also had the right to prevent the other party from dealing with part of the tree so as to injure or destroy the whole tree.” Lasell College v. Fox, 53 Mass. App. Ct. 1103 (2001). The only way in which Edward may be able to remove such a tree in its entirety is if the tree constituted a nuisance. See Bassin v. Fairley, Land Court Miscellaneous Case No. 11 MISC 451773 (AHS) (Sands, J.) (June 17, 2014).
Question: George and Harold are neighbors. A large healthy willow tree on George’s property overhangs Harold’s driveway. Leaves, sap, and branches fall onto Harold’s driveway. Harold slips and falls on the sap and leaves that fell on his driveway from George’s tree. Is George liable for Harold’s injuries?
Answer: No. The willow will not weep for Harold. She should have cut the overhanging branches her property so as to prevent herself from getting injured by George’s tree. George is not liable. “The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor’s property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance. Of course, a neighbor has the right to remove so much of the tree as overhangs his property. . . . To impose liability for injuries sustained as a result of debris from a healthy tree on property adjoining the site of the accident would be to ignore reality, and would be unworkable.” Ponte v. DaSilva, 388 Mass. 1008 (1983).
Question: Irene and Janet are neighbors. A large poplar tree on Janet’s property is growing so much that its roots are extending onto Irene’s property. The roots of Janet’s tree have caused the cement under Irene’s house to crack and crumble, potentially injuring the foundation of Irene’s house. If Irene sues Janet, would the court order Janet to prevent the harm to Irene and compensate Irene for her damages?
Answer: Probably not. The court would probably deny relief to Irene and rule that she could have and should have exercised her right of self-help to trim the roots that invaded her property before causing damage to it. See Michalson, 275 Mass. at 234.
Question: Keith wants to grow trees on his entire lot. The shade of the trees is bothering is next door neighbor Larry. What can Larry do about it?
Answer: Not much. The owner of a lot may plant shade trees upon it, or cover it with a thick forest, and the injury done to the neighbor is no violation of his rights. See Michalson, 275 Mass. at 233.
Question: One day, Larry decides to cut down Keith’s trees, without Keith’s permission. What are Keith’s remedies against Larry?
Answer: Larry is liable for the tort of trespass to trees. The Massachusetts trespass to trees statute, G. L. c. 242, § 7, provides landowners with a remedy against someone who willfully cuts down someone else’s trees. The wrongdoer shall be liable to the owner for three times the amount of damages, unless he had good reason to believe the land was his own, or he was lawfully authorized to cut the trees. For a detailed analysis, see my companion article Trespass to Trees in Massachusetts.
About the author: Robert Nislick is a Massachusetts real estate lawyer. He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.
No one ever touches on this part of tree removal: All branches on a very tall oak are over 35 feet up. All lean precariously over my house. To take out these branches will leave only a single tall pole. Also, the land where the trunk stands is in “trust” and the trustee refuses to communicate about my issues. Am I justified in cutting all branches? They each are a clear danger.
Have a question about condo association, exclusive yard, and a tree.
Three unit condo association. Bottom unit (unit 1) has an exclusive rights to the fenced in yard at the rear of the building. They want a tree that is strattling a property line of a rear property and thier exclusive right yard taken down and stump grinded. Is this an association cost, or at the cost of the owner of unit 1 who has exclusive right to yard that most of the tree is in?
Once you cut down your neighbors branches that are in your yard, do you or can you return the branches to the neighbor?
Thank you, but I have just taken out the offending tree with permission of the land owner.
Lee Achenbach ________________________________
Does neighbor’s dead tree near my property constitute a “private nuisance”?
Would the neighbor, once notified of dead tree be responsible for future damages to my property if dead tree falls? Massachusetts
A dead tree could be a private nuisance.
A nor easter and two of my trees fell down..One tree totally into my neighbors yard, and on their shed. The other a large branch leaning onto another tree and on top of a chicken coop in the neighbor behind.
Am I responsible for their removal.
The neighbor is probably responsible for the removal of the tree. However, my view could change based on the condition of the trees. You should try to work this situation out amicably with your neighbor.
What are the MA laws regarding large old and rotten trees on private property. We have sent letters that alerted the owner of the trees of the hazard the trees are to us. We described that the trees represent a danger to the children and adults are frequently in the area of the trees on our side of our fence. In 2011 a large rotted limb fell and destroyed a portion of our chain link fence. After several letters to the owner (who live in New York), the limb was removed but we fixed the fence. However, our request to remove all the rotten tees went unanswered. On March 2nd 2018, two huge rotted limbs from two of the trees fell on our side destroying our fence again and causing havoc on some of our young trees. Because the trees represent a danger to our family, is it against the law to ignore the situation. Will the city or state intervene and force the owner of the trees to remove them?
A decayed and dangerous tree may be a private nuisance, and it may be possible to obtain injunctive relief to abate it. Especially where there is a history of documented damage suffered previously. Call to discuss.
A tree of ours fell on neighbors property. They cut it and threw the limbs onto our property. Is this appropriate?
I would not say that throwing the limbs back onto your property is appropriate. Rather than increasing the tension, the neighbor should have found a better way to defuse the situation.
Hi ,
I have a four tree cluster on the property line,One tree four stumps clearly split in half , Half being on my side , half on theirs. So two and two split down the middle.
Can the neighbor cut down the two on his side if it is part of the four stump cluster ? I live in Mass.
Thank you
It is hard to predict exactly how a court would decide this issue. It seems reasonable that the neighbor can cut on his or her side so long as he or she does not impact the health of the tree on your side.
There is plenty of precedent for privately owned trees with branches and roots coming onto an adjacent property. What are the standards for a public (municipality owned) tree where branches overhang the property and roots have grown on to the property and caused damage? Can the homeowner still cut these branches and roots at the point where they extend over the property line, or is there a different standard for trees planted on public property?
Is there a point at which it would be illegal to cut down my own tree by myself (i.e., without professional help) due to the risk of it falling on my neighbor’s property or house. Suppose it is a 70+ foot tall pine tree a few feet from my property line and would be intended to fall between my house and my neighbor’s house, and suppose it is definitely close enough that it could inflict heavy damage on my neighbor’s house if it fell onto it. It seems obvious that if it does fall into my neighbor’s property when I cut it that I would be liable, but can I be preemptively stopped from cutting it by myself in this manner due to the risk to my neighbor’s property? Can I be forced to use professional help to do this?
A property owner may be prevented from removing trees on his own property for a variety of reasons. One reason may be that the property is in a wetland or a buffer zone, in which case the property owner would have to comply with the Wetlands Protection Act. Generally, I am in favor of having professionals do work rather than doing it oneself.
I have a large oak tree that is not doing well on and it’s less than 10 feet from the road on either side. I’ve heard it was considered town property but they deny they are responsible for the tree. Who is right?
You would need know exactly whose property the stump is on in order to determine who owns it, and consequently, who is responsible for it.
My next door neighbor planted three trees which will grow approximately 17 – 25 feet in height and approximately 10 – 15 feet in width within ten years. The three trees were planted next to one another and the first tree is inches from the property line. Communication with the neighbor is not an option. Does Massachusetts have regulations to protect my property from future loss of space from the trees?