Who is Responsible for Overhanging Branches?

March 5th, 2018

Who is Responsible for Overhanging Branches?

  Question: We have owned a home in the Arcadia area of Phoenix for over 20 years. Roof rats have been a constant problem. Citrus trees are both a food source for the roof rats and a vehicle for their access to the roof. The branches of our neighbor’s orange trees hang over our block wall. Although our neighbor says that we can trim the branches, our neighbor says that he will not pay for the cost of the trimming. Can we pay for the cost of the trimming, and then sue our neighbor in Justice Court for reimbursement?

  Answer: No. In Arizona and a majority of states the courts have ruled that the homeowner has to pay for the cost of trimming a neighbor’s trees. This rule, called the “Massachusetts Rule,” also states that any property damage caused by an overhanging tree, like the infestation of roof rats, creates no cause of action against the neighbor. The reasoning is that neighbors should cooperate with one another. In other words, your neighbor is being “neighborly” by letting you trim his trees, and to be “neighborly” in return you should pay for trimming the overhanging branches.

In better-reasoned decisions the courts of a minority of states follow the “Hawaii Rule” which puts responsibility for the tree wholly on the owner of the land on which the tree trunk rests. The tree owner is responsible for maintaining the tree and also for any damage to a neighbor’s property caused by the tree because the overhanging branches are trespassing into the homeowner’s airspace. As a preemptive measure, the Hawaii Rule allows a homeowner with a “sensible” harm to property due to a neighbor’s overhanging tree (harm in ways other than by casting shade or dropping leaves, flowers, or fruit) to be reimbursed for the cost of trimming the neighbor’s tree.

  Note: In the states like Arizona following the Massachusetts Rule, there is no “sensible” harm requirement for trimming a neighbor’s tree, and it is permissible to trim as much of the neighbor’s tree as overhangs his property.  However, any trimming must not kill or damage the overall health of the tree.

Published in Easement & Other Neighbor Disputes