|
Kokua Line June Watanabe |
Neighbor may trim branches
that extend onto propertyQuestion: I have some small trees planted on my side of the property line separating my yard and my neighbor's. Some branches overhang slightly on my neighbor's side. At times, my neighbor will cut branches and dump them to my side, along with leaves. Is he within his legal rights to be doing this? I'm nearing 90 and this creates a hardship for me.
Answer: It's unfortunate if you and your neighbor are not able to resolve this amicably.
The prevailing legal guideline, based on a 1981 state appellate court opinion, is that if a tree overhangs onto a neighboring property, the neighbor has a right to trim whatever is on his side.
But he can't charge the tree owner for the trimming, unless he can prove that the tree caused actual damage to his property and the owner did nothing to prevent that from happening "within a reasonable time."
Based on that, it would seem to be the responsibility of your neighbor to get rid of the branches he cut. However, the court didn't specifically address that issue, noted Capt. Randy Macadangdang, of the Honolulu Police Department.
Police don't consider this a criminal matter and will not get involved in the dispute, he said.
"We always encourage and recommend resolving the matter first between neighbors -- that's the best way," Macadangdang said. "It is a civil matter between the property owners."
We receive many complaints about a tree sometimes causing damage, but more often, just extending over a neighbor's yard, dropping leaves and/or flowers.
We looked up the Hawaii Intermediate Court of Appeals opinion, issued on Aug. 27, 1981, that addressed the situation to find out exactly what it said.
"Whitesell vs. Houlton" involved a dispute over damages caused by a banyan tree, owned by Houlton, that extended into the Whitesell's property.
According to the court opinion, the banyan was 80 to 90 feet high with foliage extending 100 to 110 feet and overhanging onto both the Whitesells' property and a two-lane street. In April 1975, the Whitesells asked Houlton to cut the intruding branches and he refused. In June 1975, the Whitesells rented equipment and cut some branches. In July 1975, they repaired their garage roof, which they said was damaged previously by the banyan's branches.
In January 1976, the Whitesells drove their vehicle on the street fronting the two properties and it was damaged by the banyan's branches. In February 1976, the Whitesells sent Houlton a letter saying a recent storm had broken many large branches that were dangling over their driveway and carport and were very likely to fall and cause damage.
When Houlton didn't respond, they hired a professional tree trimmer, who cut the branches back to the property line.
District Judge Frank Takao ruled that Houlton was liable for damages the tree caused to the Whitesells' property and for the cost they incurred in cutting the tree back.
Houlton was ruled liable for the cost of renting the equipment in June 1975, the cost of repairing the garage roof in July 1975, one-half the cost of the tree trimmer hired in May 1976, and the cost of repairing the van.
Houlton appealed the decision, contending that the damage to the van was caused by the Whitesells' "contributory negligence." He also contended that he had no duty to cut the branches on the Whitesells' property and, therefore, was not liable for any damage.
"The primary issues are whether a tree owner has a duty to prevent his tree from damaging his neighbor's property and whether he is liable for the damage caused," then-Associate Judge James Burns wrote on behalf of the appellate court. "We answer yes to both questions and we affirm."
Although evidence raised the possibility of contributory evidence, Burns wrote, the lower court made "no express finding on this issue," clearly indicat(ing) that it did not find any." The appellate court didn't find "any error in the failure to find contributory negligence."
On the issue of not cutting back the branches and liability for damages, the court looked to guidance from previous rulings in other states.
In Massachusetts and Washington, D.C., the courts had ruled a tree owner had no duty to cut back the branches; in California, Washington and New Jersey, the rulings were that a tree owner had a duty whether or not damage had occurred to a neighbor's property; and in Virginia, the court view was that an owner had a duty to prevent his tree from causing "sensible damage" to a neighbor's property.
Burns noted the Massachusetts ruling that said if the branches and roots from a neighbor's tree "offend" you or your property, you must cut them back yourself and not require the owner to do so or to pay for damages.
While the Hawaii court found that the Massachusetts ruling was "simple and certain," it did not agree that it was "realistic and fair."
"Because the owner of the tree's trunk is the owner of the tree, we think he bears some responsibility for the rest of the tree," Burns wrote. "It has long been the rule in Hawaii that if the owner knows or should know that his tree constitutes a danger, he is liable if it causes personal injury to property damage on or off of his property." He cited the Medeiros vs. Honomu Sugar Co. ruling of 1912.
He said the owner is "duty bound" to remove the danger before damage or further damage occurs.
Adopting a "modified" Virginia rule, Burns wrote that "non-noxious plants ordinarily are not nuisances; that overhanging branches which merely cast shade or drop leaves, flowers, or fruit are not nuisances; that roots which interfere only with other plant life are not nuisances; that overhanging branches or protruding roots constitute a nuisance only when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit ..."
He went on to write that "when overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life," a property owner "may require" the tree owner to pay for the damages and to cut back the branches or roots. If that isn't done "within a reasonable time," then the "damaged or imminently endangered neighbor" may have the cutbacks done at the tree owner's expense.
Meanwhile, "a landowner may always, at his own expense, cut away only to his property line above or below the surface of the ground any part of the adjoining owner's trees or other plant life."
|
See the Columnists section for some past articles.
Got a question or complaint?
Call 529-4773, fax 529-4750, or write to Kokua Line,
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. As many as possible will be answered.
E-mail to kokualine@starbulletin.com