In 2011, Harvey Jacobs’ 80-foot pine fell through his fence and into his neighbor’s yard in Potomac, crushing the neighbor’s shed and leaving 30 feet of debris in its wake. A real estate attorney at Joseph, Greenwald & Laake in Rockville, Jacobs knew that his neighbor was responsible for cleaning up the tree on his side of the fence, and for the damage to the shed. Meanwhile Jacobs could file with his own insurance company for damages on his side of the line.
“It’s counterintuitive,” Jacobs says. “If your car jumps the curb and runs into someone’s shed, your car insurance covers it. Not so for trees. It’s their insurance company that pays.”
Given that, how do homeowners protect themselves from neighbors’ trees before there’s damage?
If there’s “imminent danger to person or property,” Jacobs says, you should send the neighbor a written notice explaining your concern. (Email is one option, but certified mail is preferable, he says.) Better yet, have a certified arborist evaluate the tree, write a report and give a copy to the neighbor, noting that the tree presents a danger to person or property. If the tree or a limb falls and causes damage, you’re in a stronger position to make a claim.
Taking these steps won’t guarantee you victory, Jacobs says, but they do satisfy two important parts of a negligence claim: establishing that the neighbor had knowledge of the problem, and demonstrating that a professional evaluation was behind the claim. Of course, you’ll face legal costs with any action you choose to take.
In his own situation, Jacobs volunteered to pay for the removal of the tree debris from his neighbor’s property. It cost him about $2,000 out of pocket, which was close to his insurance deductible.
Having shared a property line with the neighbor for 23 years, Jacobs considered it the decent thing to do. The neighbor then paid to have his own shed repaired months later.
Pruning trees is another sticky legal point, according to Jacobs. In Maryland, if a neighbor’s branches or limbs are hanging over the property line, you can trim them back from your side of the lot line, Jacobs says, as long as you don’t damage the tree in the process. Legally, you can’t go on a neighbor’s property to trim back trees without permission.
In my case, and in the cases of Michelle Humanick and the Murrays, the trees that fell weren’t on neighbors’ properties. They were on county lands. The limb that hit me and my niece overhung the Bethesda Pool. The trees that hit Humanick and the Murrays were on county rights of way.
In the fiscal year ending June 30, 2012, Montgomery County had a budget of $2.1 million for tree maintenance and three staff arborists to deal with, among other things, the trees that border 5,000 lane miles of roads, highways and thoroughfares. During the summer derecho, 200 fallen trees blocked county-maintained roads; with Hurricane Sandy, there were 42.
“We cannot inspect every single tree in the county every year,” says Esther Bowring, a Montgomery County spokeswoman, who adds that the county relies on residents to report problematic trees. But “if there is an imminent danger,” she notes, “we would come out very quickly.”
Freda Mitchem called the county in 2010, after noting that a 90-year-old, 100-foot oak tree on the county right of way was dropping dead limbs. The tree was just four feet from her property line in Chevy Chase, and one limb barely missed her house.
Eventually a county arborist came out and said there were no signs of trunk decay. He suggested that another evaluation wait until spring, she says, when absent foliage could signal decaying limbs.
Alarmed by the wait, Mitchem volunteered to hire a private tree service to take down the decaying limbs, but was told that she could be fined for cutting a county tree. She doesn’t know if the county returned that spring.
Then, on a sunny, seemingly windless morning last July, a limb from that same tree tore through Mitchem’s roof, dangling five feet into the living room. It stopped just inches above an armchair.
“It could have killed someone,” Mitchem says. “It shouldn’t have come to this. We followed the system. We made the service request.”
Afterward, she contacted several county council members, and the roughly 5-foot-diameter tree was finally taken down.
In a July interview with the Gazette about the Mitchem case, Bowring acknowledged that arborists can make mistakes about which trees need to come down. “It’s always a judgment call when an arborist comes out to look at a tree,” she said.
Increasingly, local residents like Mitchem are calling for outside assessments of trees that seem to pose a threat. Chris Klimas, mid-Atlantic regional manager for The Davey Tree Expert Company in Gaithersburg, has had more calls for preventative tree maintenance in the last five years than at any other time. But removing trees can be costly. Klimas says the size, location and condition of the tree are all factors. Whether a crane is needed and whether the contractor is fully insured figure into the price, as well. Klimas says tree removal can cost anywhere from $500 to $10,000.
Five years before the tree hit their house, the Van Sants investigated removing it. An inspector told them it could probably survive another decade, and given the $10,000 estimate to remove it, they decided to wait.
Cost is a factor for Montgomery County, as well, says county arborist Laura Miller. “It’s prohibitively expensive to assess every tree,” she says.
Nonetheless, several towns have developed regular and comprehensive tree-inspection programs. Designated an arboretum, Garrett Park budgets $25,000 to $30,000 a year for tree maintenance. It inspects its trees annually, according to the town’s consulting arborist, Phil Normandy, a longtime Kensington resident. He notes that Garrett Park was built in what is essentially a tulip poplar forest. Many of the trees were planted at the town’s founding in the 1890s and are now reaching the end of their lifespan.
When a tree starts to age, the crown—the branches and leaves—may look healthy. So may the surface roots, which spread to the sides to absorb water and nutrients, he says. “But there is less stability in the anchor roots, which go straight down.”
That apparently was the case with the 120-year-old tulip poplar that fell on David Stewart’s Garrett Park property in May 2011. There was a bit of wind but no rain or lightning. “We just heard a crack and down it came,” Stewart says. The tree flattened his wife’s car in their driveway and the neighbor’s car in an adjacent driveway.
Normandy later found the tree’s anchor roots to be rotted, despite an otherwise healthy appearance. Afterward, Normandy says, “we assessed every street-side tulip poplar in Garrett Park” and ultimately removed five deemed at risk of failure.
Despite losing the car, Stewart retains his fondness for the trees. “Frankly, the trees were one of the reasons we bought here,” he says.
It’s a sentiment many in the area share. “You could cut down all the trees and it certainly would be less dangerous,” says Paul Carroll, who lives in Chevy Chase near a house clobbered by a 200-year-old black walnut tree during the derecho. “But then I wouldn’t want to live here,” he adds. “It is a matter of balancing risk against the benefits gained from tall, stately trees.”
