Tree Trouble Part II, Self-Help

Daniel Zimberoff – Barker Martin

In part one of our three-part series on Tree Trouble, my colleague David Silver wrote about Timber Trespass. In this post, I’m going to discuss self-help. Self-help is the legal term that describes “taking the law into your own hands”-literally. In this context, it would include a property owner getting out their pruning shears or shovel and cutting or trimming parts of a neighbor’s tree that infringe upon his or her property. You may be surprised to hear that in Washington, such conduct has been endorsed by the courts.

The law in Washington allows an adjoining landowner to engage in self-help to trim the branches and roots of a neighbor’s tree that encroach onto his or her property.  In Mustoe v. Ma, a case decided earlier this year, the court relied upon a 1921 case which held that “the adjoining owner’s remedy is to clip or lop off the branches or cut the roots at the property line, but does not extend to removing the tree itself.” The Mustoe court further held that the property owner was not liable to his neighbor, even if the self-help remedy resulted in the tree dying. There is no similar case law in Oregon.

However, all property owners and community associations should observe caution when deciding whether or not to exercise the “self-help” option. The Mustoe decision found no liability for a tree that died, but didn’t fall, when the roots were removed. Whether that was luck or calculated risk was not discussed in the reported decision. The case may have been analyzed differently if someone or something was injured.

Mustoe did not address whether an owner exercising self-help may be liable to her neighbor or third-parties if the tree falls and injures persons or property. The Mustoe court left the door open to the possibility that an owner may be liable if they negligently conduct the self-help remedy.  Property owners and community associations should also be aware that “shared” trees that cross a property line trigger completely separate duties.  There are many legal and factual issues that lead to liability for an association.

In order to minimize liability on this controversial topic, or before performing self-help by cutting or pruning a neighbor’s tree, you likely will want to consult with qualified legal counsel – and probably an arborist.