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Brush and tree removal and neighbor relations

Jim D. Bradbury and Courtney Cox Smith for Progressive Cattle Published on 24 June 2019
Cutting a tree

One of the most sensitive subjects in neighbor relations for landowners concerns the removal of trees and brush along property lines. While cutting brush and trees on one’s own land may seem simple, the matter becomes more complicated when the brush and trees lie along property lines or result from overhanging plants and trees from neighboring property.

Working with neighbors and trying to come to an agreement on upkeep of property lines is generally in the best interest of all parties, but this is not always possible.

Texas law has held landowners liable for trespass for damaging or destroying trees on neighboring property. In Texas, the owner of a tree is considered to be the landowner where the trunk grows. The fact that tree roots or branches grow into and over neighboring land does not alter ownership of the tree.

Neighboring landowners struggling with encroaching brush and trees are not fully without a remedy. Texas law allows neighbors to trim tree branches and brush that overhang onto their property so long as it does not damage or threaten the health of the tree or brush or damage the neighboring landowner. Any trimming or brush cutting that is done can only be made up to the property line. Further, the landowner cannot, without permission, trespass onto the property of the neighboring tree owner.

Damage done to trees in trimming without the tree owner’s permission may be subject to damages for trespass. Texas law has awarded damages based not only on the diminution of property value resulting from the trespass but also for the intrinsic value of the tree itself. Texas courts have reasoned that this recovery was created “to compensate landowners for the loss of the aesthetic and utilitarian value that trees confer on real property.” In such cases, the damage to the property is considered permanent, and landowners are entitled to recover such losses.

Notably, landowners must be cautious when hiring third parties to conduct the clearing, trimming or removal of brush or trees. Merely because the trespass is committed by a third-party landscaping company does not absolve a landowner of liability.

Another scenario in which the issue of brush cutting and tree trimming often arises concerns the repair, maintenance or replacement of fencing. Landowners must be diligent in identifying the true property line and not merely assume a fence runs along the property line. Fences may unknowingly encroach on a neighbor’s property, which could subject a landowner to damages for trespass if he removes brush or trees along that fenceline without the neighbor’s permission. Further, there is no “knowing” requirement to trespass in Texas. Therefore, landowners can be held liable for trespass even if they did not realize they were trespassing.

Even when it is known that the fence runs along the true property line, it is sometimes necessary to remove trees and brush on both sides of the property line. In such cases, all efforts should be made to obtain the consent of neighboring landowners before removing any brush or trees along a fence. If permission is denied, the landowner may be required to move the fence back from the property line to ensure the fence runs entirely along his property and to avoid trespass to his neighbor’s property by the clearing of brush and trees.

Addressing issues along the property line can be challenging, but it is in the best interest of landowners to reach out to neighbors and attempt to reach an agreement or obtain permission before clearing brush or trimming trees. Diligence in identifying and knowing actual property boundaries is also essential. Open communication and respect for property lines by landowners can go a long way in fostering good neighbor relations.  end mark

PHOTO: Always know where a tree is legally assigned to a property before you or a third party begin to trim and cut. Getty Images.

Jim D. Bradbury
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