Hurricane season prompts the question: who pays when a tree falls and damages a neighboring property?
The property owner? The neighbor? The Realtor?!?
Ok, that last one is a joke.
Florida law partially answers this question, leaving some issues unresolved.
What’s the current law, and how best can you protect yourself and your customers?
The seminal case on Florida tree law is Gallo vs Heller, 512 So.2d 215 (Fla. 3d DCA 1987). There, the Gallos sued the Hellers because encroaching branches from the Heller’s tree caused damage to the Gallos’ roof. Encroaching roots cracked the Gallos’ sidewalk. Leaves from the same tree caused the Gallos’ dog to contract a severe allergy. Finally, shade from the same tree killed some of the Gallos’ landscaping. So, who pays?
The court adopted a bright line test after noting and agreeing with the current common law and the majority rule in the United States.
Importantly, Florida law dictates that the health of the tree determines who pays when a tree causes damage to a neighboring property. The owner is not liable if a healthy tree damages a neighbor’s property – the cost to repair would be born by the damaged party. But, if a dead tree damages a neighbor’s property, the owner of the tree pays for the damage to his neighbors’ property. In this case, the Hellers’ tree was healthy. The Hellers’ were not responsible.
Florida law seems to stop at that point. So, what about live trees with a high risk of failure, or sick trees? What if your landscaper tells you that a perfectly fine tree could fall on the neighbor’s house during the next hurricane? Could you be liable?
The common law lends some guidance, extending legal responsibility to hazardous and sick trees. People must take care of known risks.
For example, in Georgia, when put on notice that a particular tree is dangerous to a neighbor or to the public, the landowner must take affirmative steps to eliminate the hazard. This duty should easily apply to Floridians.
Using our home as an example, our landscaper recently told us that our 75-foot Norfolk Pine tree was a possible danger to our neighbor’s home, so we had it removed. Doing nothing about a dangerous situation makes us liable and bad neighbors.
A NOTE FROM CHRISTIAN:
I owned a house with a playground directly underneath several dead pine trees that were in my neighbors yard. Understanding that I must make the neighbor aware of this, I sent a letter via certified mail to ask them to have the trees removed. I was lucky – the neighbor quickly had them removed and we maintained a strong friendship. If, however, the neighbor had ignored our requests, we might have had to take additional steps to protect our home and family.
With hurricane season upon us, our advice to all our clients is to inspect their properties, and take all necessary steps to protect their neighbors and the public. This advice extends beyond dead, sick, and hazardous trees. They should also safeguard loose tiles and objects that could turn into a projectile during a hurricane.
Please contact us with any questions. Now is a great time to take care of our yards.
