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Trees & Liability

By Deb Miler, WV Senior Legal Aid Contributor.

A neighbor’s oak tree branches had been hanging over the fence on Rose's property for many years. The leaves always dropped onto her vegetable garden area, so that meant lots of springtime raking. Plus, its dead branches fell onto her land at times and on another neighbor's as well.

Her neighbor didn't keep the branches trimmed, but Rose was aware that she had the right to cut the branches that were hanging over her property.

Rose asked her nephew to trim a portion of the overhanging branches without going even one millimeter over the property line. She knew she would have to get that done periodically.

Almost 79% of West Virginia's land is covered by trees, according to the National Association of State Foresters. We live in the third most forested state in the country. It may be hard to appreciate that in our everyday lives, but having the opportunity to get an aerial view will show the statistic's accuracy.

Dominic had a tree problem too. His neighbor's tree leaves blew into his swimming pool and caused him extra work. None of the tree's limbs were actually over Dominic’s property, so he has no right to trim the tree.

Trees have value in our society as a whole beyond their oxygen-producing aspects and products that can be made from wood. On our lawns, they provide shade, attractiveness and even recreation. 

While away on his family fishing trip, Don got a call from his friend with the awful news that his neighbor's biggest tree had fallen onto his house during a time of high winds. Considerable damage had occurred.

When Don got home and saw the mess inside and out, he was shocked. He had spoken with his neighbor a couple times about the old tree that had no leaves, appeared to be decayed, and should have been trimmed or cut down. Don had even sent him a letter with photos and the  information about the tree's condition. The neighbor had ignored him.

Don called his homeowner's insurance agent to start the cleanup and repair process. He took lots and lots of photos of the condition of the tree and the damage to his house.

At a later time, he did receive a check from his neighbor's homeowner's insurance because the damage was determined to be caused by his neighbor not having the decayed tree removed. Don's photos had helped with that evaluation.

If the tree had been healthy but had limbs that broke or blew off and caused damage, it's likely his neighbor would not have been responsible for the damage to Don's property. His own insurance coverage would have been needed.

For property owners who need to post their property to keep trespassers out, painting sizable purple squares on boundary line trees is now a legal equivalent to having “no trespassing” signs posted. Just maintain the paint.

For free assistance with property issues or other legal questions from the West Virginia Senior Legal Aid staff attorney, state residents aged 60 and over may call the toll-free hotline at 800–229–5068. 


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