Last updated on November 5th, 2018
Sadly, most people don’t spend a lot of time thinking about trees. For that reason, they often fail to realize that an improperly maintained tree could cost them tens of thousands of dollars in damages and legal fees. Likewise, deciding to step onto you neighbor’s lawn so you can trim their hedges can land you in civil court.
For the most part, tree-related cases are torts—that is, civil harms. This means that, generally, a judge won’t send you to jail for cutting down a tree. What they can do, however, is require that the trimmer pay thousands of dollars in civil damages.
In addition, tree law itself depends heavily on legal precedents, many of which have changed in the last several years. As a result, tree law is a surprisingly complicated part of Virginia’s legal system.
In this article, we’ll go over some of the most common areas of Virginia tree law, including encroaching branches, tree damages, and timber trespass.
Intentional Vs. Negligent Torts
As mentioned above, most tree law cases are based on civil torts. This is a broad term for any type of harm that’s settled through personal injury law.
While a tort sometimes involves a criminal offense (such as criminal trespassing), the civil and criminal cases are always handled in separate courts. Often, the decision in one court will be used as evidence for the case in the other court.
When it comes to Virginia tree law, there are two important types of torts:
- Negligent torts – These happen when someone hurts you or damages your property unintentionally. An example of a negligent tort is a neighbor failing to maintain a tree that falls into your yard and damages your property.
- Intentional torts – These happen when a person intentionally causes you harm or discomfort, or intentionally damages your property. An example of an intentional tort is a neighbor purposefully trespassing on your property and cutting down a tree that you own.
Typically, the court treats intentional torts with greater severity than negligent torts. For this reason, a common legal defense in these cases is to focus on proving that all harm was unintentional, and therefore a negligent tort.
Furthermore, Virginia has several contributory negligence laws on the books. This means that if the defense can prove that the tree’s owner was even partially at fault for the damages, they generally won’t have to pay.
Encroachment by Branches and/or Roots
Clients often come to personal injury lawyers wondering what they can do when their neighbor’s plant encroaches on their property. As it turns out, the answer depends on whether or not you can prove that the plant is causing “actual damage” to your property. By “actual damage,” we mean real, tangible negative effects on the net worth of your property.
For example, a judge would never consider an overabundance of walnuts in your yard as an actual damage. This is because none of your property is actually damaged, you’re simply inconvenienced. In contrast, if a tree’s roots are damaging your fence, or if an improperly maintained tree drops a limb on your car, you may be able to sue for the cost to repair these items.
Generally speaking, if you can prove that a tree or other plant is causing actual damage to your property, you may sue for compensation for that damage.
If you can’t prove actual damage, you’ll simply have to trim the offending tree yourself. Doing so is called “self-remedy”, and is perfectly legal in Virginia.
However, in doing so you should always remain on your own property in order to avoid trespassing charges and other similar crimes. Additionally, try to avoid causing excessive damage to the plant. Otherwise, you might set yourself up for an accusation of “timber trespass,” as explained below.
In this manner, figuring out what counts as “actual damage” can be quite difficult. For this reason, a case from 2007 serves as a great starting point for figuring out how Virginia defines “actual damage.”
Fancher v. Fagella and the “Actual Damage” Standard
One great example of Virginia tree law comes from the precedent-setting case Fancher v. Fagella, which was decided in 2007 by Virginia’s supreme court.
In it, the plaintiff (Mr. Fancher) argued that his neighbor (Mr. Fagella) had allowed his sweet gum tree to grow onto Mr. Fancher’s property. As a result, the tree was dropping debris onto Mr. Fancher’s lawn.
Furthermore, the tree’s roots had grown to damage the retaining wall between the two properties, as well as Mr. Fancher’s water lines. Because of this, Mr. Fancher wanted the tree removed. Ultimately, the case ended up in the Virginia Supreme Court for a final ruling.
The court ruled that, by itself, dropping fruit or debris onto another person’s property is not damage. If that were the only problem, the court would have told Mr. Fancher to simply trim the tree himself.
However, they also decided that the damage to Mr. Fancher’s retaining wall and water lines were “actual damage” of significant value. As a result, the court ordered Mr. Fagella to pay for those damages. The court also ruled that Mr. Fagella had to entirely remove the offending tree from his property to prevent further damage.
The main takeaway from this decision is that a plaintiff must prove that actual damage occurred to receive monetary compensation. Furthermore, this damage cannot be limited to superficial things, such as dropping debris, fruit, or the like onto a neighbor’s lawn.
Instead, the plaintiff must prove real, significant property damage that costless self-remedy (such as trimming limbs or raking fallen debris) is inadequate to fix.
Tree Tort and Timber Trespass
As mentioned above, there is a fine line between actual damages and cases which fall under “self-remedy.” Often, the specifics of the case, and how it relates to legal precedent, will decide who may sue for damages.
For example, Virginia law permits you to trim a neighbor’s tree branches if they encroach upon your property. However, this can be troublesome from a legal standpoint, as you may cause lasting damage to the tree itself. This is because, while the tree may stretch above your land, it still counts as your neighbor’s property.
In addition, if you enter your neighbor’s property in order to trim, cut down, or otherwise damage their tree, you may run afoul of several laws, specifically those found in VA Code § 55-331 through VA Code § 55-335. These laws concern “timber trespass,” otherwise known as “tree tort.”
Despite the rather silly name, timber trespass is a significant civil tort that can cost you a great deal of money. The main points of Virginia’s timber trespass laws are as follows:
In a timber trespass case, the plaintiff must assess the value of the destroyed or stolen timber by hiring a professional timber estimator. The defendant may also hire an estimator to assess the value of the timber, provided that they do so within thirty days. If they wait any longer than that, the court will go with the plaintiff’s estimator’s assessment.
This assessment matters because, under Virginia law, the court may allot damages equal to three times the total value of the destroyed or stolen timber.
What’s more, a defendant found to have trespassed is also liable for the plaintiff’s court, assessment, and replanting fees. Needless to say, this can add up, and timber trespass cases frequently result in damages equaling several thousands of dollars.
It is in the defendant’s best interests to promptly hire an assessor to determine the value of the tree in question as quickly as possible. The same goes for hiring an experienced trial lawyer to help you build a defense.
In a timber trespass case, the plaintiff’s main goal is to prove that a civil or criminal trespass occurred. Depending on the case, this may require hiring a surveyor to prove that the defendant did indeed enter the plaintiff’s property. However, you will not need to prove that the trespass was intentional.
A good piece of advice is to set up cameras on your property to monitor your trees if a neighbor is threatening to cut them down. Video proof of trespass is a great way to strengthen your case in court.
Once trespass has been demonstrated, the burden of proof is on the defendant. In order to avoid paying damages, the defendant must prove that they “acted prudently and under a bona fide claim of legal right.”
Examples of defenses they might raise that fall under this category include:
- Demonstrating that they received permission from the owner (you) before cutting on the property.
- Proving that they were the actual owner of the property and lumber, of that ownership was shared (for example, the tree was on the property line).
- Showing that the instructions or information they received was inaccurate, ambiguous, or misleading (such as if your neighbor lied to a logging company about ownership).
Fallen Tree Laws
As shown above, there are very few cases where you can legally walk onto your neighbor’s property and cut down their trees. So, what happens if your neighbor’s improperly-maintained tree falls onto and damages your property?
Fortunately, Fancher v. Fagella also provides a straightforward answer to this question. If you want to receive restitution, you will need to prove two things:
- That the neighbor acted negligently in failing to maintain their tree.
- That the fallen tree caused actual damage to your property.
Actual damage is simple enough to demonstrate. However, it can be difficult to prove that a neighbor failed to properly care for their tree.
That’s because what seems like common sense to one person might go unnoticed by another.
Ultimately, the law expects a person to exhibit “reasonable care” in the maintenance of their trees, not expert knowledge. As a result, courts are likely to rule that ignoring obvious signs of disease, decay, or overgrowth count as negligence, while more nuanced things, such as area-specific diseases that often go undiagnosed, fall under expert knowledge, and thus don’t count as negligence.
Regardless of tree knowledge, it’s also important to note that Virginia courts generally don’t hold the defendant responsible when weather events or non-visible rot are the reason for the fallen tree.
Overall, the Fancher v. Fagella standard gives a good baseline for fallen tree cases. However, there are also a few major exceptions to this standard to be aware of.
Public Highways and Rural Areas
Five years after Fancher v. Fagella was decided, Virginia’s supreme court reviewed the standard in order to decide another case. During that review, the court clarified that residents of Virginia are not generally liable for damages resulting from trees falling onto public highways. The only exception arises when a defendant has taken deliberate action to damage the tree or cause it to fall.
During that same review, the court clarified that individuals in rural areas do not have a duty to inspect their trees regularly. However, individual circuit courts have broad freedom to interpret this ruling as they see fit, in light of the individual circumstances.
For example, an individual who only owns a small plot of land in a rural area may indeed have a duty to inspect his or her trees regularly.
As we mentioned earlier, Virginia has a strong interpretation of the concept of contributory negligence. This means that the court cannot assign damages in a negligent tort case if the plaintiff was even partially responsible for the incident. It follows that, in Virginia, any strong personal injury case must be able to disprove a case of contributory negligence.
Consider the following situation, which is relatively common in Virginia.
Your neighbor has a rotten, clearly unhealthy tree with branches hanging over your driveway. After several weeks, one of their tree limbs falls, damaging your vehicle. Shouldn’t the neighbor be liable for your damages?
In Virginia, the answer may be “no,” because of contributory negligence.
As we mentioned earlier, you have the right of self-remedy in Virginia—in other words, you could have cut the branch yourself.
By failing to do so, the argument goes, you may have contributed to your neighbor’s damage to your property. If the defense can prove that this is the case, the court is very unlikely to provide you with any damages at all.
As this example shows, contributory negligence can put a wrench in just about any injury case. That’s part of why hiring an experienced personal injury lawyer is so important. By choosing the right attorney, you can formulate a strong rebuttal to any claim of contributory negligence, and improve your chances of receiving fair compensation.
So far, all we’ve talked about is civil law. However, there are also a couple of offenses related to tree torts that can also lead to criminal charges. While these charges are handled by an entirely separate system, a criminal conviction can still be used as evidence against the defendant in a tort case.
Typically, a tree tort or timber trespass case leads to one of two types of criminal charge.
In Virginia, criminal trespass refers to entering a location after being specifically forbidden to do so. This forbiddance can be oral or in writing, provided that the sign forbidding your passage was easily visible. If the owner did not forbid your passage, or you left after being forbidden, you did not commit criminal trespass.
Note that this is not the same thing as civil trespass. In Virginia, civil trespass is the act of entering someone’s property and interfering with their use of it (by cutting down their trees, for example).
It is possible to commit civil trespass accidentally, which can be a negligent tort if you cause harm to the property. However, you will not receive fines or jail time from the state for doing so. An example of civil trespass in this case would be crashing your car into a tree on someone’s property.
In Virginia, criminal trespass is a class 1 misdemeanor. If convicted, you could face a $2,500 fine and up to one year in jail.
Destruction of Plants in a Public Park
However, the owner or maintainer of the park may choose to waive criminal charges if they so desire.
While it may sound like a niche field, tree tort is a surprisingly important part of Virginian civil law. It’s also a shockingly expensive one, with defendants sometimes seeking hundreds of thousands of dollars in damages.
With such large sums on the line, it’s critically important for plaintiffs and defendants alike to have access to good legal counsel. No matter which side you end up on, a good personal injury lawyer can help you craft a strong case.