Given the potential tree situation after the recent hurricanes, the following information about who is responsible if a tree falls and damages someone else’s property. has been excerpted from a document forwarded to the ABPOA. A copy of the memorandum is attached below.
When a tree on one property leans toward a second neighboring property or structure, who is liable for damages should the tree fall on the second neighboring property or structure'?
A landowner is not liable to others outside the boundaries of her land for damage caused by healthy trees growing on her property. Tree branches and roots that encroach from one property onto adjoining property may be considered a nuisance to the owner of the adjoining property. For example, where the roots of a neighbor's tree extend over the property line so as to crack the neighbor's driveway or a tree limb falls onto a neighbor's home, the roots and limb are a nuisance. The tree owner, however, is not liable for the damage because the neighbor is privileged to trim back the branches, roots or other encroachment that has grown onto his or her property.
Florida courts have concluded that it is better to allow individuals to protect themselves from such nuisances than to "open the door for the innumerable lawsuits that would otherwise result." Id.
If the trees in this case encroach over the property line, then the neighbor is at liberty to remove those portions of the tree that are on her property. If the neighbor does not remove the encroaching portions of the tree and is damaged by those portions, then the Division will not be liable for the damage so long as the tree is a normal, healthy tree.
On the other hand, the ordinary rules of negligence apply where a neighbor is damaged by a tree that is diseased decayed or otherwise constitutes a dangerous condition. A landowner is liable for damage to a neighboring property caused by a falling tree or limb when the landowner knew or should have known that the tree constituted a dangerous condition.
In this case the trees are "leaning" which may be considered a dangerous condition. If the trees are in fact found to be a dangerous condition, then the Division has been put on notice of that condition and will be liable for any resulting damage.
How does the liability of a tree owner change if he or she knew of the tree's condition before the tree damaged a neighboring property?
Under Florida law, a landowner may only be held liable for damage caused by a defective tree when the landowner knew, or should have known, that the tree constituted a dangerous condition. If the Division is aware of a defective tree on its property that is potentially a safety hazard, then the Division should take steps to eliminate the hazard.
Q We live in a homeowners association with 42 homes. We understand if your neighbor's tree falls on your property, it is your responsibility to pay for any damages that it causes to your property.
If you see a large tree in your neighbor''s yard that looks potentially dangerous to your property, can you send them a certified letter explaining your concerns and requesting the tree's removal? After placing them on notice, if the tree causes damage to your property, can you hold them liable for the damages?
A The answer depends on the condition of the tree. Your neighbors will not be responsible for any damage caused as a result of their tree falling on your property unless they knew, or should have known, that the tree was unhealthy, damaged or unstable and created an unreasonable risk if not trimmed or removed.
A tree damaged by lightning, a dead and rotting tree, or a leaning tree would be examples of trees that may create an unreasonable risk and merit sending the letter you suggest. Whether your neighbors knew, or should have known, that the condition of their tree created a hazardous situation will depend on the facts of the case. Your letter would certainly be evidence of notice.
However, you cannot turn your neighbors' perfectly healthy tree into a liability by sending them a certified letter stating that their tree is large enough to damage your home in the event it is blown over in a storm. You can protect your property by trimming any branches hanging over your yard or roots protruding into your yard, so long as you do not harm the tree. As a courtesy, you should talk to them before doing any trimming.
Property owners in rural areas may not be held to as high a standard of care with regard to trees on their property. The reason being that it would be unduly burdensome for the owners of large tracts of land or heavily forested parcels to constantly monitor their trees, as opposed to an urban area homeowner with only a few trees in the yard.
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