Joel A. Hilgendorf, Esq.

Most readers of this article are well aware the emerald ash borer has arrived in Minnesota, and poised to potentially devastate nearly a billion trees within the State. Seemingly overnight, trees have sprouted in our newspaper stories, television news features, and have become a concern for many property owners. Trees provide countless intangible benefits to us. The cost of removing a damaged or diseased tree can range from a few hundred dollars for a small one, to tens of thousands of dollars for certain large hazard trees. For an owner that must remove multiple trees, costs can be substantial. Although trees are ever present, trees as an issue have moved into the public media and public conversation. This is therefore an opportune time to review some of the more common legal issues that can arise related to trees.

Ownership. In general, the location of a tree trunk determines who owns the tree, and who is responsible for the tree. If a tree lies completely within the boundaries of a lot, there is typically no ownership issue. Problems can arise when a tree straddles a boundary line or grows into adjacent property. Such a tree is called a boundary tree. In Minnesota, a boundary tree is owned jointly by the adjacent land owners only if the owners intended jointly own the tree. Their intent can be shown by an express agreement, or by their conduct, e.g., they planted it together or maintained it together. Without the intent to jointly own the tree, then one of the owners will typically be deemed the owner, and therefore responsible for the tree. Owners should be cautioned that confusion or continuing dispute over ownership of boundary items, such as trees, hedges, boulders, fences, etc., may be a sign of a larger boundary problem that relates to the ownership or use of the underlying land.

Negligence. Trees are, of course, living things, and they can get sick, infested, and die. A tree that this is still standing but has portions that have become unsound through disease, infestation, or death, is often referred to as a hazard tree. If a hazard tree threatens to damage someone else's house, car, sidewalk, or other property, the tree's owner may be liable for any damage that the tree causes. If the owner knew, or should have known that the damage was likely, or that the potential for damage from the hazard tree was foreseeable and the owner failed to take corrective action, then the owner likely will be responsible for the damage caused by the tree. To avoid being deemed negligent, the owner should remove unsound trees or portions of trees that could foreseeably damage others' property.

Disclosure. Similarly, sellers of real property should disclose the existence of diseased or otherwise defective trees located on the property. For residential single family homes as well as condominiums and townhouses, a seller must disclose all material facts of which the seller is aware that could adversely and significantly affect an ordinary buyer's use and enjoyment of the property, or any intended use of the property of which the seller is aware. Material facts can include, but are not limited to, physical defects of the property itself, such as diseased, infected or otherwise defective trees. Where a seller is aware of and fails to disclose material facts, the seller will be liable to the buyer for that failure to disclose.

Nuisance. Trees, by their nature, grow larger and spread into new areas. Depending on their location, and if not maintained, some trees can become a nuisance. Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property, is a nuisance. If a boundary tree encroaches on an adjacent property to the point where the tree's branches or roots start damaging fences, sidewalks, driveways, foundations, sewer systems, etc., this can invite a nuisance claim. In Minnesota, property owners have certain rights of self-help to abate a nuisance on their own. Engaging in self-help is tricky, because you are not permitted to trespass or destroy other's property. Engaging in self-help often escalates a dispute and invites claims from the original owner. If self-help is not reasonable or advisable, an owner has a cause of action to enjoin or abate a nuisance, i.e., have the tree removed.

Disputes over trees can often be signs of larger real estate issues. A property owner should always consult with an experienced real estate attorney before pursuing any particular legal remedy.