Creating Thriving Communities Through Land Use And Real Estate Law

Massachusetts Rule Confirmed, No Legal Remedy for Damage Caused by Neighbor’s Healthy Tree

Frank Lloyd Wright said “the best friend on earth of man is the tree,” but perhaps the epigram is less true if the tree is on your neighbor’s property and causing damage to your property. In Massachusetts, it has long been the rule that a property owner may not hold a neighbor liable for damage caused by the neighbor’s healthy tree, regardless of the extent or type of the damage. The Supreme Judicial Court has now affirmed the continued operation of the Massachusetts rule in its recent decision of Shiel v. Rowell, SJC-12432 (July 16, 2008).

In that case, Mary Schiel sued her neighbors, the Rowells, for damage to her roof caused by the Rowells’ 100-foot sugar oak tree. She also sought an injunction requiring the Rowells to cut back the offending overhanging branches.  When her case was dismissed, Schiel appealed, and the SJC granted her application for direct appellate review.  Schiel argued that the Massachusetts rule, which effectively barred her from any recovery against the Rowells, was outdated and inappropriate considering the smaller lot sizes of modern development, and that the Court should adopt the “Hawaii rule” instead. The Hawaii rule grants neighbors a right of action to resolve disputes in court over healthy trees and allows a neighbor to require that the tree owner pay for damage and cut back branches and roots if the tree causes, or there is an imminent danger of it causing, sensible harm to the neighbor’s property.  The Rowells, unsurprisingly, argued that the Massachusetts rule continues to be the correct method of addressing tree issues and should be upheld on grounds of stare decisis.

The SJC, while acknowledging that stare decisis does not require adherence to precedent in all situations and that, were it to find that the Massachusetts rule no longer appropriate given contemporary realities, determined that the Massachusetts rule was not outdated and remains controlling law in the Commonwealth.  Despite criticism of the Massachusetts rule by other jurisdictions, the Court found that the proper resolution of neighborly tree issues continues to be to authorize the cutting back of overhanging branches and intruding roots by the abutting owner. The Court also recognized that a move away from the Massachusetts rule would likely create vexatious and costly lawsuits.

So, if your neighbor’s healthy tree extends over your property and causes damage to your property, you cannot sue your neighbor, but you may remove the offending branches or roots on your side of the property line to prevent damage.