Trees and the law: What to know to protect yourself and your property

We are blessed in Tallahassee to have so many amazing trees and a rich urban canopy. Unfortunately, that urban canopy is under constant stress from development and construction activities.

Many property owners in Tallahassee own trees in poor structural condition, trees having suffered from neglect, disease, construction damage, or which are simply approaching the end of their normal life cycle. When trees fail and fall, the results can be catastrophic.

Owning large trees can give rise to certain legal duties and responsibilities. However, no one should rush to cut down their trees out of fear of a lawsuit.

Mature trees can add significant market value to property, particularly residential property. Some add tens of thousands of dollars to overall property value.

Large trees can also provide shade to help reduce energy consumption, and add character, interest and beauty to the urban landscape.

Negligence and property damage

Still, trees are dangerous if left standing in poor condition. When trees fail causing injuries, death or property damage, such occurrences are rarely accepted by the injured parties as “an Act of God.”

Injuries, deaths, and property damage caused by improper maintenance of trees or construction damage to trees can lead to compensable damages in a civil lawsuit, most often through a negligence action.

Negligence is defined as not doing something a reasonable person would have done to avoid harm, or doing something a reasonable person would not have done, causing harm.

Negligent parties can be held legally responsible for the damages resulting from their negligence. The best way to avoid legal problems stemming from tree ownership is to be a good steward of your property.

Property owners should regularly inspect their property and know its condition. Special attention should be paid to large trees in areas where people, cars, or buildings might be struck if the trees were to fall.

Inspect for decay and defects

Mature trees should be examined for signs of decay, structural defects, such as voids or cracks, or any visible damage or dying limbs, known as “die-back.” Trees should be professionally pruned to remove dead limbs overhanging roadways, buildings, and places where people walk, drive or play.

A tell-tale sign of underground root decay is a line of mushrooms radiating out from the base of a tree. Other fungal growth on the tree itself may also indicate the presence of hidden decay.

These are signs of hidden decay which have been used successfully in court cases to prove owners should have realized their trees were not healthy and potentially dangerous.

Cutting back all limbs overhanging your house, an action sometimes recommended or required by home insurance companies, may actually do more harm than good. This is particularly true if the trimming is done improperly leaving stubs of limbs that will rot and introduce decay back into the body of the tree.

Improper trimming of branches invites more serious structural problems and potential liability concerns later on.

Overhanging branches and property lines

As a general rule in Florida, a property owner has the right to trim overhanging branches back to his or her property line. Some courts have taken the view this right extends to cutting roots back to the property line as well.

That view is outdated and extremely risky from a liability standpoint. When roots are removed, the structure providing lateral support for the tree and resistance to wind load forces is diminished.

It is not uncommon in Tallahassee and Leon County to see clear examples of root destruction at or near property lines adjacent to construction projects or land development. It is no surprise some of those same trees fail before their time and end up on top of buildings or out in the street.

Root protection

Improper root cuts, just like improper limb pruning, often introduce decay into the main stem of the tree. Root destruction can cause immediate loss of stability or a future defect leading to failure and conditions that can result in personal injuries, deaths, or property damage.

Common sense plays a big role in how lawsuits are decided. Take, for example, a situation where a person cuts through all of the surface roots on one side of a large tree, and the tree then falls over in the opposite direction.

The person who cut the roots, or who directed they be cut, runs a very real risk he or she might be judged later as having taken an action that a reasonable person would not have taken.

Our local tree ordinance defines a “critical protection zone” for root protection of trees of certain types and sizes. A violation of the ordinance can be used in court as evidence of negligence.

Consult an arborist

Trees are living organisms. They differ greatly in their ability to withstand damage.

Improper pruning or construction damage may or may not lead to tree failure. It can take years for decay to reach the point of being a serious structural problem for the tree.

The best insurance against future claims is to ask a qualified International Society of Arboriculture ("ISA") certified arborist for advice before cutting limbs or roots and follow their advice.

Beauty and responsibility

Trees can kill. Trees also add beauty, property value, and energy savings for their owners, and carbon capture for our shared environment.

Remember to inspect your trees regularly and keep them healthy. Prune branches and roots when necessary, but do so properly.

Consult qualified professionals and follow their advice if you know or suspect you may have a problem tree.

These are all examples of actions a “reasonable person” might do to avoid harm and which could provide a defense should you find yourself on the wrong side of a lawsuit.

If your neighbors have a dangerous tree or have done something to make a tree you own unsafe, tell them about your concerns.

Be a responsible neighbor and be mindful of how actions on your property might affect the health of your neighbors’ trees. Remember, court is an expensive place to resolve a dispute.

J. Stanley Chapman is a practicing civil trial lawyer (850-590-7942 or schapman@schapman.law) Ed Duke is Associate Professor in the FAMU College of Agriculture and Food Sciences and Sam Hand, FAMU Extension.

This article originally appeared on Tallahassee Democrat: Trees and the law: What to know to protect yourself and your property