Law FAQ: My neighbor’s tree hangs over the property line. Do I have the right to cut back the branches?

Yes.  The Tennessee Supreme Court made clear in 2002 that you definitely have the right to cut away any branches or vegetation to the extent it hangs over onto your property.  In other words, you may cut branches up to the property line; however, you may not cut over into your neighbor’s property.

The case is Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002).

The more difficult issue that typically arises in this context is whether your neighbor has a duty to cut back the branches him/herself.  The answer to that question is a bit more fact dependent, but the summary of the law by the Tennessee Supreme Court is as follows:

Encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground.  However, encroaching 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.  If so, the owner of the tree or plant may be held responsible for harm caused by it, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.  We do not, however, alter existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.

Also, there’s a helpful distinction in Footnote 9 in the case relating to rotten/dead trees, which fall into their own special category:

It is important to note, however, that dead or decaying trees that cause harm are in a category of their own and require a different analysis.  Unlike the cases involving harm caused by live trees, which are based on nuisance or trespass principles, cases involving dead or decaying trees are typically analyzed according to negligence concepts.  Thus, liability usually turns on whether the defendant landowner lived in an urban or rural area, and whether the defendant knew or should have known that the tree was dead or decaying and therefore was on notice that the tree might fall.  See, e.g., Staples v. Duell, 329 S.C. 503, 494 S.E.2d 639 (App. 1997); Taylor v. Higley, No. 02A01-9207-CV-00194, 1993 WL 137593 (Tenn.Ct.App. May 3, 1993); see also Restatement (Second) of Torts § 363(2) (1965); Dan B. Dobbs, The Law of Torts 588-89 (2000).  The trees involved in the present case are live, healthy trees.  Thus, we do not reach the question in this case whether or to what extent liability may be imposed for harm caused by a dead or decaying tree.  That subject must await an appropriate case.

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