Here is the answer to our #1 most frequently asked question:
My tree is growing toward my neighbor’s house, am I responsible?
A landowner is not liable to the adjoining property owner for an alleged nuisance caused by overhanging branches and roots from a tree on his or her property; however, the adjoining property owner is legally entitled to trim back, at the adjoining owner’s own expense and only up to the property line, any encroaching tree roots or branches and other vegetation that had grown onto his or her property. If the branches or roots are dead, or a dead tree falls onto the adjoining landowner’s property, then the landowner of the property where the tree was originally located may be responsible. If a live tree falls onto the adjoining landowner’s property, then the adjoining landowner is responsible for any damages. (Quoted Text From University of Florida IFAS Extension website.)
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Yes, you may prune back the limbs and roots up to the boundary line as long as it does not result in substantial injury or death.
Quoted text from University of Florida IFAS Extension website:
"The removal of a tree on the boundary by one landowner without the consent or authorization of the adjoining landowner may result in liability for "reduction in value of the land resulting from removal of the tree" as well as for the "loss of the ornamental value and creature comforts provided by the tree" (Elowsky v. Gulf Power Company, 172 So. 2d 643, 645 [Fla. 1st DCA 1965]).
In Elowsky v. Gulf Power Company, a tree was located on the boundary line between the properties of the plaintiff and the defendant (Id.644). The plaintiff was a police officer who worked night shifts and regularly had to sleep during the day (Id.). The tree shaded and cooled the bedroom during the afternoon (Id.). The defendant removed the tree, and the plaintiff had trouble sleeping after its removal (Id.). The jury awarded the plaintiff $500 in damages (Id.). The First District upheld the verdict and stated:
An owner of real estate has a right to enjoy it according to his own taste and wishes, and the arrangement of buildings, shade trees, fruit trees, and the like may be very important to him, may be the result of large expense, and the modification thereof may be an injury to his convenience and comfort in the use of his premises which fairly ought to be substantially compensated, and yet the arrangement so selected by him might be no considerable enhancement of the sale value of the premises, it might not meet the taste of others, and the disturbance of that arrangement, therefore, might not impair the general market value (Id. 645)."
Quoted text from University of Florida IFAS Extension website:
"Branches and roots frequently extend across property lines. Whether a branch or root from a tree on an adjacent landowner's property is the responsibility of the landowner with the tree located on his or her property or the landowner of the property to which the branches overhang or roots encroach depends upon the branches or roots themselves. If the branches or roots are healthy, then the landowner with the tree located on his or her property is not liable for damage caused by the branches or roots. The adjoining landowner may, at his or her own expense, trim back the branches or roots as he or she desires up to the property line. If the branches are dead, however, then the landowner with the tree located on his or her property may be responsible and could be liable for damages caused by the branches (1 Fla. Jur 2d Adjoining Landowners section 8 [2014]).
In Scott v. McCarty, a property owner brought action against a neighbor alleging that overhanging branches and roots from the neighbor's tree caused damage to his property (41 So.3d 989, 989 [Fla. 4th DCA 2010]). The Court affirmed the trial court's dismissal with prejudice of appellant's complaint for damages based upon Gallo v. Heller, 512 So. 2d 215, 216 (Fla. 3d DCA 1987), which explained the common law rule:
[A] possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner's own expense, any encroaching tree roots or branches and other vegetation which has grown onto his property.
Scott, 41 So. 3d at 989 (quoting Gallo, 512 So. 2d at 216) (alterations in original).
The Scott court prescribes the adjoining property owner engage in self-help to combat encroaching vegetation by suggesting the landowner resort to trimming. By doing so, this leaves an open question as to what other methods of self-help are available. It is not clear whether the adjoining property owner may spray encroaching vegetation with herbicide such as glyphosate, which could translocate and kill the entire plant. Alternatively, the adjoining property owner may wish to use a stump grinder to destroy roots that have encroached onto his/her property. It is not clear whether these or other self-help methods are permitted and whether employing them would create a cause of action against by the encroaching landowner against the encroached landowner."
Quoted text from University of Florida IFAS Extension website:
"The health of the tree may determine which landowner is responsible for damages to property (A secondary source called “Florida Jurisprudence” provides that where a dead tree falls on an adjoining property and damages that property owner's home, the landowner who owns the property where the tree originally was located is responsible for damages (1 Fla. Jur 2d Adjoining Landowners section 8 [2014]). Alternatively, Florida Jurisprudence provides that where a live tree falls on an adjoining property and damages that property owner's home, the adjoining property landowner is responsible for damages. Put another way, consider Landowner A (property owner of tree) and Landowner B (adjoining landowner). If Landowner A's dead tree falls on Landowner B's property, Landowner A is responsible for damages. Conversely, if Landowner A's living/live tree falls on Landowner B's property, Landowner B is responsible for damages.
However, there is no case law discussing the live/dead tree distinction discussed in Florida Jurisprudence. Florida Jurisprudence is not binding authority and a court may disregard it when adjudicating a case. Under a negligence theory, one could argue that a dead tree is a hazard that could cause foreseeable damage to a neighboring property. In other words, it is foreseeable that a dead tree will fail (especially during a storm), which creates a common law duty of care to remove the dead tree to in order to prevent damage to neighboring property. Under this theory, the duty to remove trees may not be limited to dead trees, but may also include live trees with a high risk of failure such as trees with co-dominant leaders and girdling roots. As of this writing, there is no case law on point discussing the duty owed by landowners to remove dead/hazardous trees to prevent damage to neighboring landowners. It will be up to future courts to decide this point."