Who Is Responsible for Damage and Removal of Downed Trees?
October 3, 2017
Hurricane Irma caused a lot of damage in Central Florida and we are still dealing with downed trees and limbs littering neighborhoods. Since the storm, we have received countless phone calls from clients asking who is responsible for damage caused by a neighboring property owner’s tree falling on their property, or who is responsible for the cost of removing a neighboring property owner’s tree that fell on their property?
Fortunately, in Florida, the law regarding fallen trees and the resulting damage is fairly clear. Generally, property owners are only responsible for damage caused by dead trees located on their property. Additionally, in order to prevail on a claim for dead tree damage, the claiming party needs to establish notice of the existence of the dead tree.
The below article is intended to provide property owners and community associations a primer on Florida property owners’ rights and obligations with regard to trees on their property.
Who is responsible for a tree falling on neighboring property?
Under Florida law, the health of the tree determines who is responsible for damages to neighboring property. If a dead tree falls on a neighboring property resulting in damage, the person who owns the property with where the trees was originally located is responsible for damages if they were on notice the tree was dead. However, if a live tree falls on neighboring property resulting in damage, the neighboring property owner is responsible for those damages. The same holds true for the costs of removal of the tree.
For example, if a healthy oak tree on your property fell through your neighbor’s roof due to Hurricane Irma’s winds, you are not liable for those repairs. However, if weeks before the storm your neighbor notified you of a dead tree on your property that posed a hazard, but you did nothing, and it was blown down during Irma, you are likely liable for the damage caused by the dead tree. Making matters worse, since you had actual notice of the dead tree and the danger it posed prior to the hurricane, your own insurance carrier will likely not cover the claim.
With the above in mind, and having experienced first-hand the costs of repairing damage caused by your neighbor’s healthy tree falling onto your property, what can you do if another storm approaches and other neighboring trees exist that are threatening to fall on your property?
Can you remove a healthy tree bordering on your neighbor’s property?
No. If you remove a healthy tree on the border line between you and your neighbor’s property without the consent of your neighbor you may be liable for the “reduction in value of the land resulting from removal of the tree” as well as for the “loss of the ornamental value and creature comforts provided by the tree.”
In Elowsky v. Gulf Power Company, 172 So.2d 643 (1965), a tree was located on the boundary line between the two properties. The defendant removed the tree, which provided shade for the plaintiff’s bedroom in the afternoon. In upholding a money judgment for the plaintiff, the First District held that the arrangement of buildings, shade trees, fruit trees, etc., may be very important to an owner, and the removal thereof may impair the convenience and comfort of the property entitling an owner to compensation.
What about over-hanging branches or encroaching roots?
It depends. The rule addressing such encroachment is similar to downed trees. The seminal case on this issue is Gallo v. Heller, 512 So. 2d 215, 216 (Fla. 3d DCA 1987), which held:
[A] possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner’s own expense, any encroaching tree roots or branches and other vegetation which has grown onto his property.
Therefore, if a branch or root from your tree is encroaching on neighboring property you are only responsible for trimming it or for damage caused by failure to do so if the branches or roots are from a dead tree. Conversely, if the tree, branches, or roots are healthy, you are not required to trim them back or liable for damages caused by them. However, the neighboring owner may, at their expense, trim back the branches or roots up to the property line.
Please remember, the above is just an overview of the laws related to damages caused by trees in Florida. While generally the responsibility for damages caused by fallen trees or encroaching branches or roots depends on the health of the tree, the facts of each case are important. You should always consult with your legal counsel on any case specific matters.