Tree Disputes Between Neighbors
In the fertile ground for disagreements between neighbors, trees are a recurring problem. Whether the issue involves encroaching branches or roots or the accidental or intentional cutting of a tree, it is important to understand the legal landscape.
In an urban or suburban setting, problems with trees can arise in a number of ways. Overhanging branches can block light or satellite reception; they can damage structures; and they can drop leaves, fruit, flowers or other items. Encroaching roots can cause significant structural damage to foundations, walkways, and underground utilities. Although a neighbor does not have the right to enter onto your property and cut down all or part of a tree growing on your lot, he does have the right to cut or trim branches or roots which are encroaching onto his property at the property line. This remedy, known as self-help, is available regardless of whether the encroaching branches or roots are actually causing damage to the neighbor. In the event that your tree is determined to be a nuisance, meaning that its encroaching branches or roots have caused actual damage or pose an imminent threat of causing actual damage to a neighbor, then the neighbor may be able to obtain injunctive relief from a court, which could include requiring you to completely remove the tree.In the event that a neighbor does come onto your property and cuts a tree growing on your property, there are causes of action and remedies available to you. Unlike other states, Virginia does not allow the recovery of the replacement cost or intrinsic value of a tree. However, you may choose to ask a court for either the stumpage value of the tree or the diminished market value of your property as a result of the absence of the tree. If the tree has no merchantable value, i.e., it is merely ornamental, it will likely be to your advantage to seek recovery based upon diminished property value.
In a rural setting, where trees usually grow more densely, issues may arise between neighbors in the form of timber harvesting which crosses a property line. When this happens, Virginia statutes allow for the recovery of triple damages and attorneys’ fees, which are not ordinarily available to plaintiffs. However, a specific process must be followed in order to be eligible for this relief.
First, within thirty days of discovering that your timber has been cut and the identity of the person responsible, you must notify the responsible person and appoint an experienced timber appraiser to determine the amount of your damage. This should be done by letter, email, or other correspondence. The person responsible then has thirty days to either deny the trespass or appoint his own appraiser. If he appoints an appraiser, the two appraisers must work together to estimate the damage, but if they cannot agree, they must appoint a third appraiser, whose estimate will control. The estimate must be completed within thirty days of the appointment of the second appraiser. If, however, the person responsible fails to timely name an appraiser or dispute the claim, you may proceed with obtaining an estimate from the appraiser you selected. You must then give a statement to the person responsible setting forth the amount you seek to recover under the statute. That amount includes three times the value of the timber on the stump; the cost of reforestation; the cost of the timber appraisal; and attorneys’ fees incurred. If the amount is not paid within thirty days, you may file suit and obtain a judgment for that amount.
Notably, the statutory relief is not available when the person responsible proves that he acted prudently and under a bona fide claim of right—in other words, when he reasonably thought he had the right to enter onto the land and cut the trees. In such a case, the person responsible remains liable for the simple stumpage value of the timber and any related property damage. On the other hand, if the person responsible knowingly and willfully cut the timber, he may be subject to criminal prosecution for timber theft, and you may be entitled to damages in the amount of the manufactured value of the timber.
As is the case with all neighbor disputes, it is important to fully understand your rights and obligations. Hiring an attorney and land surveyor are important steps in that process.