THE TOUGH CUSTOMER- Noxious no more: Owner responsible for 'nuisance' trees

Well, those were some rapid results from a column I penned last month.

On August 9, I wrote about Brenda Jones, who lives in fear of several trees on her neighbor's property that hover menacingly over her house. Twice in recent years, she says, sizable branches have broken off the trees and caused substantial damage to her neat, well-maintained Fifeville home.

Jones needed some help to afford to have the trees trimmed, so she tried to get the owner, Eugene Williams, owner of Dogwood Housing, to split the cost. What she got from Williams, she says, was the high-hat.

The law was not on Jones' side, so she had little leverage with Williams. The rule in Virginia, in place since 1939 and known aptly as "The Virginia Rule," was that a landowner could sue a neighbor for damage caused by a tree situated on the neighbor's property only if the tree were "noxious," a subjective standard that Black's Law Dictionary helpfully explains includes "the complex idea both of insalubrity and offensiveness. That which causes or tends to cause injury, especially to health or morals." 

In practice, it provided little if any protection to an aggrieved property owner.

On September 14, however, the Virginia Supreme Court overturned the Rule, giving much greater legal protection to property owners threatened by a neighbor's trees. 

Okay, maybe my column wasn't behind the court's decision. Maybe the re-write was prompted, as the court noted, by the changing face of Virginia from a rural state to a more densely populated one. Maybe it was, as the court also noted, the fact that the "noxious" standard was "unworkable." And maybe the actual parties to the case and their lawyers, who have been litigating since 2003, had a little something to do with it.

Whatever. The point is, Jones' situation is now considerably different than it was a month and a half ago.

In the case Fancher v. Fagella, Virginia's Supreme Court adopted a new rule– known as "The Hawaii Rule." If a neighbor's tree is merely a "nuisance," you may be entitled to a court order requiring the neighbor to trim it or even remove it entirely. Furthermore, the neighbor may be liable for any damage the tree causes to your house.

"Nuisance" is a clearer and less restrictive legal standard than "noxious." In defining "nuisance," the court cited language stating, "We hold that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers or fruit," but that such trees and plants "may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property."

The court's decision is a significant change that ought to cause virtually all homeowners to reassess their potential liability regarding trees on their property, especially if they have been involved in a dispute with their neighbors over the matter.

Williams says he's aware of the court's ruling and is reviewing it, but he would have no comment on it until after speaking with his attorney– if then.

Shortly after the Jones article appeared last month, certified arborist Stephen Feagans, owner of Tree Medics in Palmyra, offered to take a look at the trees looming over Jones' house and, if warranted, write a letter confirming that the trees pose a threat. While that may have been of limited utility a month ago, now such an opinion could make all the difference.

For her part, Jones says she has felt particularly hurt by Williams' attitude towards her throughout this whole affair. "I have even approached Eugene... to discuss with him just to go half with me and cut back the trees," she says.  "He refused ... and I quote his exact words, ‘The trees are not bothering me.'"

After the Virginia Supreme Court's ruling in Fancher v. Fagella, however, that might very well change.

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