Legal Question in Real Estate Law in Nebraska

Liability From Trees Infringing Upon Neighbor's Fence

I have several 10-year old trees close to my lot line, bordering a neighbor's lot & fence. The tree trunk 'flare' and tree roots are now contacting and damaging my neighbor's fence. (The fence is also about 10-years old, but was put up just before the trees.)

There are NO local laws with regard to trees near a lot line. (When I planted the trees, I had NO idea they would become huge & cause a problem!)

The neighbor is adamant that I remove my trees, and also dig out the tree roots which have crossed over on to his property line.

What is my liability, and what are possible remedies, with regard to my trees infringing upon my neighbor's fence?

Asked on 4/02/08, 9:54 pm

1 Answer from Attorneys

Duke Drouillard Drouillard Law, LLC

Re: Liability From Trees Infringing Upon Neighbor's Fence

There isn't a clear black and white answer to your problem. Generally, the courts tend to favor your position because trees have relatively high social utility. The courts do not want to be inundated with neighbor disputes over trees, so the majority of the rulings have limited the remedy of your neighbor to cut back roots and branches at his own expense. This extensive pruning so close to the trunk of your trees might easily cause the trees to die and at the very least would detract from their appearance. On the other hand, negligent stewardship of trees that are diseased or dead has exposed the tree owner to liability for not pruning or removing the trees before they caused damage to a neighbor's property. It is possible, that planting large trees so near a property line in a residential neighborhood could be characterized as negligent. It doesn't really matter whether or not you actually knew the trees would get that large if the court concludes that you should have known by reasonable and prudent inquiry. You should have asked the nursery how big the trees might grow or used the internet or library to research it yourself. The bottom line is that unless you and your neighbor can reach a compromise, you are both likely to pay for some fairly expensive litigation that leads to one or both of you to feel as though you have lost. Often these type of disputes create hard feelings that never heal. Think how you would feel if you were in your neighbor's shoes. If you can no longer be civil with your neighbor, you might consider using a mediation service. In any case, I would advise you to avoid going to court on this issue. It will be expensive and you bear a significant risk of losing.

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Answered on 4/03/08, 12:00 am

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