Tree Law: "Who Owns This Tree?"

Boundary Line Tree: Neither of the property owners is at liberty to cut the [boundary line] tree without the consent of the other.

First and most importantly, I am not an attorney. What I am is a concerned business owner who has an interest in the law.  Having recently read Arboriculture and the Law co-authored by Victor D. Merullo and Michael J. Valentine, I am inclined to share my findings in hopes of answering a few common questions we receive every year dealing with liability basics and the general risks associated with tree ownership.

“Who, in fact, owns this tree?” is a question our company is faced with each and every day. Tree ownership is a big deal. Owning a tree makes one responsible for the potential (and actual) damage caused by that tree if it fails, but when? What about when trees fail in severe weather events or the most baffling, when a tree that shows no signs of stress or decay uproots and fails anyway?  All these questions are even more challenging when a tree grows directly on a property line or is encroaching on a neighbor’s property. If undesirable limbs, which originate from an adjoining neighbor’s tree, hang over your property line, what rights do you have in removing them? According to the authors’ research, some. “May I treat an ash tree to protect against the Emerald Ash Borer if the majority of the tree is located on my neighbor's property?” Good question. The answer: yes, and no.

Trees that grow directly on a property line (split directly down the middle) are called boundary line trees and are owned by both property owners as “tenants in common.” According to the authors, “neither of the property owners is at liberty to cut the [boundary line] tree without the consent of the other, nor to cut away the part which extends into the property owner’s land if the injury would result to the common property in the tree” (Merullo, Valentine, 1992, p. 24).  For instance, if one of the tenants in common is to perform work to the tree which results in death to the tree, that may lead to legal consequences initiated by the other tenant. So although it may be tempting, one cannot simply cut the tree down the middle without expecting one fierce legal headache. Often times property lines are not clearly defined and it can be difficult for arborists to determine if a tree exists between two properties. When in doubt, before signing a tree contractor’s contract accepting full ownership, speak to your neighbor(s) and get written permission prior to any work to a boundary line tree. Maybe offer them warm chocolate chip cookies first.

Tenants in common of boundary line trees must respect the joint ownership of the tree completely whereas a tree that is not directly on the property line has different implications.  “It is generally held that when a neighboring landowner’s tree limb hangs over an adjoining landowner’s property, the adjoining property owner has an absolute right to cut the tree limbs off the tree up to the property line” (Merullo, Valentine, 1992, p. 33).  We often tell clients to imagine an imaginary vertical line (as if Luke Skywalker was pointing his lightsaber directly to the stars) running along the property line. All plant material that is on the client's side of the lightsaber, may be removed with confidence. However, a challenging issue we often face is the practicality of performing the tree work without the necessity of accessing the neighbor’s (non-client's) property. This can be especially hard when said neighbor may or may not be that into Star Wars if you know what I mean. We must respect private property and avoid trespassing at all times; as a result, there have been a handful of jobs we have not been able to commit to because the work could not be safely done without gaining access (and permission) to the adjoining property.  

The Luke Skywalker property line pruning method

The issue of trespassing also weighs heavily in regards to Tree Wellness applications. As mentioned earlier, trees that are close to property lines can be difficult to treat properly without consent from both property owners. Perhaps the health of a beautiful ash tree that hangs over a property line is extremely important to one neighbor and not at all to the other - our arborists may only be able to treat the tree with trunk injections from one side, which means the tree may not be getting the best preventative care. The same goes for deep root fertilization which is ultimately beneficial if applied around the entire drip line of the tree canopy. Again, possibly improving one’s baking skills may lead to healthier, happier trees? It’s worth a try.

Our American beech tree that recently succumbed to high winds

Even if one crosses every t and dots every i, some things are beyond all control. I have seen it first hand in my own woods; large mature trees which look perfectly healthy one day are lying on the forest floor the next (see photo). Two certified arborists in one house, taking every precaution to protect family, property and the public and yet massive winds or sudden soil erosion uproot trees around us.  Nature is unpredictable even to the trained eye, however what I read in chapter ten of the book was reassuring: “the landowner is exempt from liability for injuries caused by trees resulting from natural conditions, but the landowner will be responsible for injuries which the landowner could have taken measures to prevent” (Merullo, Valentine, 1992, p. 91). This is important because although some tree failures cannot be predicted, just like the weather, many are avoidable with the help of an educated, experienced arborist. Simply planting a tree properly in the right location can be the difference between long-lasting health and increased liability.

I can recall a serious tree failure in a Worthington neighborhood a few years ago. A very large, mature Siberian Elm tree suddenly uprooted and slammed to the street blocking traffic in both directions. This was and is a street children ride their bikes up and down and that I pushed a stroller along nearly every day. The reason the tree most likely failed? A paved driveway was installed too close to the trunk of the tree, cutting off and smothering the vital root system that exists in the top twelve inches of soil. It may take years before the compression from asphalt and the lack of water to roots from construction projects lead to catastrophe, which is a daunting reality for the unsuspecting homeowner.  On a warm summer day after a night of heavy rain, the elm tree totally failed. By sheer luck (or perhaps a bi-conditional “act of God” ?), no one was injured.

Our team has collectively seen many unfortunate tree related situations which have helped us communicate the importance of knowing what it really means to own a tree.  There are a few simple measures a homeowner can take to demonstrate an awareness of the risks associated with tree ownership and by doing so hopefully eliminate a great deal of legal stress. For instance, learning how to properly protect trees during construction or if installing a cabling system may mitigate the potential for tree failure under increased stress (from wind and/or ice) can be determined through a discussion with an experienced arborist.

Lastly, it may seem obvious that we begin all tree work with a signed contract from the person, company or municipality that hired us which states the client(s) have sole ownership of all trees listed on the quote however language clarifying this responsibility is not only to release Russell Tree Experts from liability, but because we recognize the work we do cannot be reversed. I hear Joe Russell often saying, “the best time to plant a tree is 20 years ago.” As avid tree lovers, we recognize and appreciate that adage more than most. Mature, healthy trees are highly valuable and hard to come by. A personal goal of mine is for each of our clients to be able to look out their windows, gaze at their gorgeous trees and smile, big. If that isn’t possible yet, again with the cookies.

Credits: Merullo, Victor D. and Valentine, Michael J. Arboriculture and the Law. Champaign, IL: International Society of Arboriculture, 1992.


Shari Russell | Managing Member & Co-Owner, Russell Tree Experts

Shari Russell graduated magna cum laude from The Ohio State University with a Bachelors in Landscape Horticulture and Cultural Anthropology. She is a member of the International Society of Arboriculture and has been a Certified Arborist since 2008. She is currently preparing for the June 2019 LSAT.