Lexington, KY - Trees offer us so much: clean air, cooler homes, reduced stormwater runoff, increased property values, reduced crime and a more beautiful city. In return, we must care for our trees to keep them healthy and safe. Whose responsibility is this? What laws govern the maintenance of a tree?
If you live in Fayette County and you have trees on your property, they will either be street trees or trees on private property.
Street trees are planted in the city's right of way, which can generally be considered as the area between the sidewalk and the street. Laws relating to these trees are covered under Chapter 17B of our city ordinances and summarized in a brochure entitled "Lexington Street Tree Guidelines." Both the ordinances and the brochure can be accessed at the government website, www.lexingtonky.gov.
The brochure says that "the ownership and maintenance of street trees are the property owner's responsibility." A permit is required to remove a street tree, and it must be replaced with a "suitable species" within a year. Proper street tree maintenance includes limbs being pruned to a minimum of 7 feet above the sidewalk and 12 feet above streets, and they must be kept away from any signage.
Trees on private property, however, are not addressed in the city ordinances, and the city will not step in to resolve tree-related disputes on private property. Issues regarding such trees are governed by common law.
What does common law tell us about your rights and responsibilities regarding trees on your private property? I spoke with Dr. Bill Fountain, an Extension professor in the Department of Horticulture at the University of Kentucky, about these issues. (A disclaimer is necessary: Dr. Fountain is not a lawyer and he does not give legal advice. He is relating this information from his extensive experience with legal disputes over trees on private property.)
Let's say that you have a tree growing on your property that is not in the city's right of way. If the entire tree trunk is located on your property, you own this tree, including any branches that grow over adjacent property lines. Your neighbor, however, may prune the branches that grow over his property line, no matter how high these branches are, as long as this pruning is done with the intent of self protection or protection of property. He may not prune branches out of spite. He may prune the branches back to the property line and no further - any further and this would be considered trespassing.
The wood from the pruned branches rightfully belongs to you, not to the neighbor who does the pruning. Does your neighbor have to give you this wood? This question is legally up in the air. Technically they should give you your wood but the value is so low that it is considered worthless in most cases.
Now let's say that you own an apple tree and some of the apples fall onto your neighbor's property. Yes, you own those apples, however, this does not give you the right to trespass onto your neighbor's property to retrieve them. This includes the simple act of reaching across the fence. Further, your neighbor cannot require you to pick up the apples. So, if you want the apples, does your neighbor have to give them back to you? Dr. Fountain says that, to his knowledge, the question of fallen fruit has never been decided in any court, noting that some scholars relate this to maritime law, where it is "finders keepers," while some do not. He remarked that the prudent thing would be for your neighbor to "make two pies and give one to you."
We now know that your neighbor has the right to protect himself and his property by pruning back any of your tree branches (or other parts) that cross his property line. However, this pruning must be done in such a manner that the health of the tree is not compromised and that it does not create a danger to you, the owner of the tree. Here Dr. Fountain gives an example:
Let's say that you have a large oak tree located very near your property line. Your neighbor is about to install a new driveway and is concerned that the tree roots might damage this driveway. So he cuts the tree roots right back to the property line.
Here, Dr. Fountain says, "You have to know your trees." Oak, hickory, beech and chestnut branches that are over the area of cut roots will die. In this case, the cutter of the roots has negatively impacted the health of your tree. Also, if the roots are cut so that the tree becomes unstable and falls on your house, then the cutter of the roots can be in jeopardy. (Installing an herbicide impregnated weed barrier would be a better solution.)
Note, too, that while your neighbor has the right to prune the branches of your tree back to the property line, the manner of pruning is important. If he makes stub cuts, decay will result. Your neighbor is required to use commonly accepted, science-based best management practices when pruning your tree.
What about a tree that is not located entirely in one person's yard? In such cases, both parties are "owners in common." Neither party can remove the tree without the permission of the other owner. And they each share all the rights and responsibilities of ownership.
And now, the big question: What if your tree just up and falls over on your neighbor's house? In this case, unless the tree has been willfully damaged, it will likely be seen as an act of God, meaning an event that could not be predicted, and your neighbor's house insurance will be responsible for covering the damage.
(By the way, Dr. Fountain says arborists know differently. Tree don't just up and fall over without giving subtle warning signs. A trained arborist can actually predict the potential for failure with a high degree of confidence. While the exact timing cannot be provided, the tree can be judged to have a low, medium or high risk of failure.)
When it comes right down to it, common law aside, Dr. Fountain summarizes all of this by saying that the bottom line is courtesy. Ask your neighbor about pruning his tree or if he would like his apples back. And don't forget that pie.