Attorney Jim Shoemaker, Property EncroachmentPeople frequently ask me what can be done about their neighbor’s tree branches hanging over their property. In short, branches that are growing beyond the boundary line of the tree owner’s property is unlawful, and the encroached upon neighbor is within his or her rights to have the branches removed. As long as the encroached upon neighbor removes the branches only to the extent that they encroach upon his or her property, the encroached upon neighbor will not be liable for damage to the tree, since he or she is merely exercising a legal right in response to a trespass.

A branch overhanging a neighbor’s adjoining property line is a trespass that can be remedied by either self-help or through other equitable remedies. Jones v. Wagner, 624 A.2d 166, 169 (Pa. Super. 1993). In Jones, branches of Jones’ hemlock trees grew across the property line of Wagner. While Jones was away on vacation, Wagner trimmed the branches of the trees to the extent that they protruded over his property line. Jones sought damages equal to the replacement value of the trees. The Court held that the overhang of the branches constituted an “actionable nuisance.” Jones, 624 A.2d at 168. The Court concluded that a landowner has the exclusive right to the space above the surface of his or her property, and that any erection upon one person’s land that projects over the land of another, as well as any tree whose branches thus project, doing actual damage, or anything that interferes with the rights of an adjoining land owner, is an actionable nuisance. Jones, 624 A.2d at 168.

In addition to recognizing the landowner’s right to the space above his or her property, Jones recognized Wagner’s right to self-help, concluding that Wagner was entitled to trim the encroaching branches without regard to the degree of physical harm done to his property. Jones, 624 A.2d at 169; see, also, Koresko v.Farley, 844 A.2d 607, 617 (Pa. Cmwlth. 2004) (in Pennsylvania, encroaching tree parts are a trespass which a landowner may remove). The right of a neighbor to trim branches without being required to show actual damage to his or her property arises from the trespass over his or her property and not any physical damage done to his or her property. Jones, 624 A.2d at 169.

The aggrieved landowner has three options:

• First, an aggrieved landowner is entitled to exercise a self-help remedy by either trimming or lopping off the branches to the extent his property is encroached.

• Second, if the landowner has incurred reasonable expenses in the course of exercising a self-help remedy, he may recoup those expenses from the trespasser.

• Third, he may, on a trespass theory, seek equitable relief compelling the trespassing neighbor to remove the trees to the extent of the encroachment and seek appropriate incidental and consequential damages.

Jones, 624 A.2d at 171

In removing branches that have encroached upon one’s property, the property owner is not liable for any damages to the trees, since the landowner is exercising his or her right to remove the branches. Jones, 624 A.2d at 171.

Please note that a landowner has no such rights with respect to leaves that fall from a tree on his neighbor’s property and are carried by wind onto his property.

The above is only a general statement of the law as of the date of this posting, and every case is different based upon the specific facts. If you have questions regarding an encroaching tree, please contact the lawyers at Hourigan, Kluger & Quinn.”

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