Donna had a glorious old oak on her property. The tree was so old, that it was considered an "historic" tree by many of the locals. Donna had plans to nominate the tree for landmark status. Donna's neighbor, Jay, wasn't so happy with the tree. The roots of the tree were interfering with Jay's sewer lines. About once a year, sewage would back up in Jay's house. The branches of the tree were another problem. In particular, one branch hung all the way over Jay's house. Jay wants to know his rights with regard to the encroachment by the roots and the branches.

The right of self-help

A property owner may cut back branches and roots that stray onto his or her property. The right of self-help, as it is called, is not found in state law; however, it derives from the common law. The rationale behind the right of self-help is that, to the extent possible, property owners should be able to protect their interests without the necessity of resorting to the courts.

Is the right of self-help without limitations?

The right of self-help is not without limitations. A property owner who engages in the self-help remedy of trimming back encroaching branches or roots must:

  • not trim beyond the boundary line of his or her property; and
  • take care not to injure the tree by trimming.
  • And, to the extent the property owner needs to enter onto the property of another in order to complete the trimming, the property owner must obtain permission to do so.

First Things First

As an initial matter, a property owner troubled by an encroaching tree should consider talking to the owner of the tree. It may be that the parties can agree to split the cost of a professional tree service or work on the trimming together. In that way, each party can take an affirmative role in remedying the problem.