Ernest “Big Daddy” Bux’s favorite old, majestic cypress tree “Cyrus” has a wide draping canopy near his property line adjoining his neighbor Sonny Gap. Gap recently complained that the roots and the canopy are growing into his property; that the roots have grown into his foundation and around the gas meter and pipes; and that some of the roots are growing into knees above-ground making walking in this area tricky. Plus, his wife thinks the tree is hideous. Can Gap make Big Daddy cut down the tree? Can Gap hire someone to cut it down? If not, can Gap just poison the roots on his property?

Legally

As to cutting it down, it depends on the location of the tree, and whether there are local ordinances affecting removal. As to poisoning, no.

Forming Tree Boundary. If Cyrus’ trunk is on both sides of the property line – effectively, a “boundary tree,” it cannot be removed by either property owner without the consent of the other. They both own it.

Overhanging Property Line. When trees growing entirely on one owner’s land invade another’s property, the neighbor may either cut the limbs or roots at the property line. In this case, Gap has the right to trim Cyrus’ branches and roots encroaching onto his property from Big Daddy’s tree; yet, he must be careful:

• Cyrus can only be trimmed to the property line – not cut down or destroyed.
• Gap has no right to trespass onto Big Daddy’s property unless Cyrus’ limbs threaten to cause immediate and irreparable harm.
• Any tree trimming expenses are borne by the party doing the trimming

What About Poison? Poisoning the roots is not an option. In fact, Gap must be careful to avoid damaging Cyrus on Big Daddy’s property. Gap can become legally liable for damages to Big Daddy if he injects poison into Cyrus’ roots on his property and destroys the whole tree.

Spreading Roots. In Texas, if Gap is bothered or worried by encroaching roots of a healthy tree, his remedy may be to carefully trim the tree roots himself. Bald cypresses, like Cyrus, send up “knees” that sometimes make it difficult to mow the grass. Arborists differ as to whether the “knees” can be safely removed without damaging the tree. Consult an arborist or other tree expert.

Local Ordinances. Many Texas municipalities – including Dallas and Fort Worth – have tree ordinances purporting to address, among other things, public tree care, tree preservation, landscape and landscape tree preservation. The City of Dallas ordinance, for example, currently regulates: all tree species except those not protected; tree protection from construction; protected tree replacement at inch for inch; timing of replacement; diversity standards for replacement trees; and specific methods of replacement/mitigation. Certainly, this ordinance applies to developers and home builders whose focus is lots and home construction – not the preservation. The penalties for violating these ordinances can be steep. For example, a home builder recently faced significant fines for cutting down 113 trees to make way for a 219-home development project. Yet, it is worth noting Texas Attorney General Ken Paxton’s opinion whether under certain circumstances municipal tree preservation ordinances may violate the takings clause of the Texas Constitution.

Practically – Who’s Responsible?

If Gap suffers damages, can he recover from Big Daddy? Probably not from damage caused by the tree roots on his property. With respect to falling branches or a tree on his property – or perhaps even root invasion, any court will likely apply a reasonable care standard. If Big Daddy took reasonable care to maintain Cyrus’ branches, and to a reasonable person, a tree branch would not seem to be threatening to fall, then probably Big Daddy would not be responsible for a limb or tree falling on Gap’s property. However, if a reasonable person could have anticipated and avoided damages incurred from Cyrus’ branches, Big Daddy might be responsible. As far as picking up limbs that may fall from natural causes (lightning, storms, water, wind), the owner of the place where Cyrus’ limbs fell is responsible for removing.

Tilting the Scales in Your Favor

Good fences and good trees make good neighbors. Communication counts. Beyond that, it is in the best interest of Big Daddy to control Cyrus’ growth to avoid creating potential damage on Gap’s property. The courts exercise wide discretion in dealing with encroachment cases, taking into account factors addressing the principles of reasonableness and fairness for both parties.

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