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If Your Tree Hangs Over Your Neighbor’s House

Although the Virginia Supreme Court has repeatedly changed the legal duty a homeowner owes his neighbor for plants that encroach on the neighbor’s house, there are still unresolved questions regarding the law when your tree hangs over your neighbor’s house.

Before 1939, Virginia followed the ancient English “common law” rule that a landowner owes no duty to his neighbor with respect to “natural conditions” existing on the land, no matter how dangerous those conditions are. The English common law views plants to be “natural conditions.” English courts developed the common law rule for rural conditions, comprising primarily farms and large estates in which dwellings were isolated from each other and usually distant from the property boundaries.

Under the common law, a landowner could, at his own expense, trim a neighbor’s plants where they encroached on his property, but could not sue the neighbor for damages for the harm caused by the encroaching plants. Under the common law, a landowner also could not obtain an injunction (i.e. a court order) commanding the neighbor to do anything about his encroaching plants.

In 1939 the Virginia Supreme Court revised the common law in Virginia to allow a landowner to sue his neighbor for damages if a neighbor’s plant encroached on the landowner’s property. Smith v. Holt, 174 Va. 213, 5 S.E. 2d 492 (1939). The right to sue created by the Smith decision was limited in three ways: (1) the cause of action would arise only if the encroaching plant was “noxious,” (2) the encroaching plant had already caused “sensible injury” to the landowner’s property, and (3) the remedy was limited to money damages, not injunctions. It is important to note that the Smith case involved two rural landowners, not residents of congested suburbs.

In 2007 the Virginia Supreme Court again amended the common law in Virginia concerning encroaching plants, to adapt it to modern, suburban and city life. Fancher v. Fagella, 274 Va. 549, 650 S.E. 2d 519 (2007). In Fancher, the owner of a townhouse planted a sweet gum tree about 3 feet from the property line of the neighboring townhouse. Over several years the tree grew to be over 60 feet high. Branches from the tree hung over the neighbor’s townhouse.

The neighbor sued, requesting the trial court to issue an injunction commanding the tree’s owner to cut it down. The neighbor could not prove that the tree’s branches and roots had already damaged his property, but arborists testified that such damage was inevitable and predicted that the tree would eventually grow to 120-140 feet high. The trial court dismissed the suit, citing the neighbor’s inability to satisfy the three requirements established by Smith, i.e. the neighbor could not prove that the tree was noxious, no damage had already occurred, and the sole remedy available was money damages, not an injunction.

On appeal, the Virginia Supreme Court recognized that the legal requirements created by Smith were not practical for modern cities and suburbs. First, the Supreme Court overruled the requirement that an encroaching plant be “noxious.” Recognizing that the word “noxious” includes “the complex idea both of insalubrity and offensiveness,” the Supreme Court observed that: most people would agree that poison ivy is noxious; opinion would be divided regarding whether kudzu is noxious; and most people would not consider a healthy shade tree to be noxious. Yet the sweet gum tree at issue in Fancher would cause more harm to the neighbor’s townhouse than poison ivy. The Supreme Court concluded that the requirement established by Smith that an encroaching plant be “noxious” was unworkable, and abandoned it.

Second, the Supreme Court overruled the requirement in Smith that damage to a neighbor’s property must have already occurred before the neighbor could file a lawsuit. Instead, the Supreme Court held that such a lawsuit could be filed if the encroaching plant posed imminent danger of actual harm.

Third, the Supreme Court overruled the holding in Smith that the neighbor’s sole remedy for encroaching plants was money damages. Instead, the Supreme Court authorized trial courts to issue injunctions to prevent harm before it occurred.

In sum, the Supreme Court in Fancher set a new standard regarding encroaching plants in crowded cities and suburbs. The law in Virginia now is that if an encroaching plant threatens to cause or had already caused damage to a neighbor’s property, the neighbor may sue, and obtain both money damages and an injunction to remove the encroachment. The Supreme Court also left in place the neighbor’s right to self-help, i.e. to trim the encroaching plant himself, at his own expense.

In Fancher the Supreme Court also expressly stated that the Fancher rules would not apply to rural landowners. For rural landowners, the Fancher holding emphasized that the neighbor’s traditional common law right of self-help, i.e. to trim the encroaching plant himself, was sufficient.

In 2012 the Virginia Supreme Court declined to extend the Fancher case holding to rural settings. Cline v. Dunlora South, LLC, 284 Va. 102, 726 S.E. 2d 14 (2012). In Cline, a tree on rural land fell into a public road, striking a car and injuring its passengers. The injured passengers sued the owner of the land on which the tree was located. The trial court dismissed the lawsuit.

On appeal, the Virginia Supreme Court found that Virginia law had never imposed a duty on rural landowners to inspect and cut down trees that could fall into highways, even if the tree was sick or dead. Affirming the trial court’s dismissal of the case, the Supreme Court ruled that the Fancher holding was limited to urban and suburban environments, and refused to extend it to rural settings. It is worth noting that the Cline holding was determined by a 4-3 vote of the justices, 3 of whom filed a dissenting opinion and would have applied the Fancher holding to rural settings.

Note that the Supreme Court in Fancher expressly refused to rule whether its new rules would apply to an owner of undeveloped land when neighboring property is developed into homes. The Supreme Court has yet to address that particular scenario, and this situation leaves an unresolved factual situation that could arise in any suburb with a homeowners association: if the association owns undeveloped land next to a house, do the Fancher rules apply? The Virginia Supreme Court’s holdings in both Fancher and Cline were influenced by the unique facts of each case, and future applications of Virginia’s law regarding encroaching plants will likewise be dependent on the facts of the case then before the Court.

If you would like to discuss such a situation, please feel free to contact Randall K. Bowen using this website or by telephone at (703) 535-5398.