Tree Liability in Maryland, DC, and Virginia
By: Jason S. Ordene, Esq. & Anthony Clark, Esq.
Among the many issues community associations deal with are disputes between owners regarding trees that encroach upon a neighbor's property. While each jurisdiction has established law on the issue, as a community, the simplest solutions are usually the best. Therefore before resorting to the courts, residents should consider contacting their neighbors to ask whether they would be willing to fix the problem voluntarily. While the world would be simpler if such property disputes were always amicably resolved between neighbors, in some instances, owners cannot reach an accord. This article will explore the differences between how D.C., Virginia, and Maryland resolve these issues.
One of the most common issues homeowners face is when a tree's roots or branches extend over the property line onto a neighbor's adjoining property. In this situation, Maryland has adopted the “Massachusetts Rule” and D.C. has adopted a slightly modified version thereof. Melnick v. CSX Corp., 540 A.2d 1133 (Md. 1988); Dudley v. Meadowbrook, Inc. 166 A.2d 743 (Md. 1961). The Massachusetts Rule generally limits a neighbor's remedy to “self-help,” which means that when your land is invaded by branches and roots of trees, you may protect yourself there from by cutting them off to the extent that they invade your property. When a neighbor uses such “self-help,” they must be sure to not to prune the tree past the property line, as doing so may be considered a trespass upon the owner's property. Furthermore, the neighbor using “self-help” may not kill or otherwise cause substantial harm to the owner's tree. Consequently, a neighbor using the “self-help” remedy should hire a professional arborist to perform the trimming so as to ensure that the owner's tree is not significantly harmed.
In Maryland, there is generally no cause of action or right to file a lawsuit for tree encroachment and remedies are limited to “self-help.” However, there is an exception to this rule that under certain circumstances, specifically in urban areas, an owner may be subject to liability if a dead or dying tree limb falls and injures someone. Hensley v. Montgomery County, 334 A.2d 542 (Md. Ct. Spec. App. 1975). While D.C. generally follows the Massachusetts Rule, it has adopted a modification which allows a cause of action if there is negligence by the owner. D.C. imposes a duty on owners of “common prudence” in maintaining their property. See Tolu v. Ayodeji, 945 A.2d 596 (D.C. 2008); Dudley v. Meadowbrook, 166 A.2d 743 (D.C. 1961). An example of common prudence is if there are noticeable signs of rot in the tree or some other disease that compromises its structure and stability, then the owner of the tree must take appropriate action to ensure such defects do not result in the tree damaging a neighbor's property. If an owner repairs a damaged tree, the repairs must be done in a reasonable and prudent manner to ensure that the tree will not later cause damage to a neighbor's property. If an owner has notice that their tree is damaged and is likely to fall or otherwise damage a neighbor's property, then that owner has a duty to take appropriate steps to ensure that the neighbor's property is protected. If the owner breaches this duty, then they may be subject to liability.
Virginia follows a different rule known as the “Hawaii Rule,” which states that while living trees are not ordinarily nuisances, they can become so when they cause actual harm or impose an imminent danger of harm to the adjoining property. Fancher v. Fagella, 650 S.E.2d 519 (Va. 2007). While self-help is still allowed in Virginia, if an overhanging branch or protruding roots actually cause, or there is imminent danger of them causing substantial harm to property, other than casting shade, dropping leaves, flowers, or fruit, the neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the neighbor may cause the cut-back to be done at the tree owner's expense. Virginia has limited the application of this rule stating that the “Court has never recognized, nor do our precedents support, a ruling that a landowner owes a duty to protect travelers on an adjoining public roadway from natural conditions on his or her land.” Cline v. Dunlora South, LLC, 726 S.E.2d 14 (Va. 2012).
These rules apply to trees located within an owner's property or in the common elements. Association boards and managers should at least understand these rules so that they are better prepared to respond should a dispute arise between neighbors about a tree, or when a tree located in the common elements causes an issue. Associations should also review their options with legal counsel when confronted with a tree encroachment issue, especially if the association is considering using self-help. If your association would like legal counsel to assist with a tree issue in your community, please do not hesitate to contact counsel at Whiteford, Taylor & Preston, LLP.