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Another tree question (1 Viewer)

Terminalxylem

Footballguy
About a year ago, my neighbor approached me about some issues he’d experienced with his plumbing. Although I don’t know the exact nature of the problems, he mentioned they removed one of their toilets and saw tree roots traversing the soil adjacent to the piping. Long story short, he thought the roots caused his problems and were coming from a ~30 foot tree adjacent to his home, on my side of the property line. He also thought the roots were cracking a sidewalk next to his house and potentially causing foundation issues.

So I consulted an arborist. He wasn’t as certain the tree was solely responsible for all my neighbor’s problems, in part because a retaining wall separates our properties, with the neighbor’s ground level ~5 feet below the bottom of the tree. So the roots would have to grow at least that distance down before traversing laterally to damage the neighbor’s property. While he agreed they could still disrupt the plumbing, the smaller diameter roots which could make it under their home probably couldn’t cause foundation issues. Moreover, the area where we live is notorious for foundation problems related to expansion/contraction of clay-based soil. I know this to be the case, as I have spent over $120K to fix our foundation.

He suggested we keep the tree, both for the shade it provides and value it adds to our property. To mitigate the potential damage, he could cut the roots and install a physical/herbicides barrier to prevent them from regrowing on their property. And my wife likes the pretty pink flowers on the tree, though they often fall with other leaf litter into my neighbors’ gutters,  adding insult to the plumbing injury.

I presented this option to my neighbors, who weren’t immediately sold on the idea, as they’d prefer the tree be removed entirely. So we left it at they’d weigh their options and get back to me.

I heard nothing about it until today, when my neighbor said his plumbing issues were getting worse. So I called the arborist back. He’s coming in the morning to re-evaluate and provide estimates for tree removal versus root mitigation barrier. I reminded my neighbor of the latter solution, but he said he was concerned that digging a trench in his yard to cut the wayward roots and install the barrier might destabilize the retaining wall.

My questions for the board:

1. Anyone have experience with installing barriers to prevent root damage?

2. Since the tree is on my property, I’m expected to foot the bill for either solution, correct? 

3. By paying to remove the tree or cut roots/install a barrier, am I implicitly accepting responsibility for other damage the tree may have caused? I assume an structural/soil engineer could comment on the likelihood of tree roots causing foundation issues.

4. What would you do? For the record, we get along well with the neighbors, but basically keep to ourselves. Also, roots from this tree have grown into our plumbing, but were extracted by a plumber and subsequently kept at bay by Root-X.

 
I would think since the tree is 100% in your yard you have 100% control on what to do with it. There is no reason he can't put the mitigation on HIS side of the property line at his expense. 

It's kind of like trimming any branches that are on your side of the fence.  In my opinion.

 
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I would think since the tree is 100% in your yard you have 100% control on what to do with it. There is no reason he can't put the mitigation on HIS side of the property line at his expense. 

It's kind of like trimming any branches that are on your side of the fence.  In my opinion.
Interesting. It appears Hawaii feels differently:

The law of encroaching overhanging trees runs a continuum from total self-help to the exclusion of any judicial remedy (the “Massachusetts Rule”) which we discussed yesterday – to tree owner liability (the “Hawaii Rule”), with many variations in between. If the law of encroachment were at Baskin Robbins, the Massachusetts Rule would be chocolate ice cream, and the Hawaii Rule would be vanilla.

In Whitesell v. Houlton, 632 P.2d 1077 (App. Ct. 1981), a Hawaiian appellate court first adopted what is generally known as the “Hawaii Rule,” which held that when there is imminent danger of overhanging branches causing “sensible” harm to property other than plant life, the tree owner is liable for the cost of trimming the branches as well as for the damage caused.

Maybe the court’s holding that the Whitesell v. Houlton tree was a nuisance arose from the hard facts of the case: the tree was a massive banyan tree, with a 12-foot trunk and 90 foot height. There is, after all, an old legal maxim that “hard cases make bad law,” and the banyan tree in this case was pretty clearly monster flora, sort of the kudzu of trees. Perhaps it was that the laid-back political and cultural nature of the Sandwich Islands is far removed from the flintier New Englanders and the type of self-reliance embraced by the “Massachusetts Rule.” For whatever reason, if a branch from a healthy tree in Massachusetts is in danger of falling into a neighbor’s yard, he may trim it at his own expense … but that’s it. In Hawaii, overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit. Then, the damaged or imminently endangered neighbor may either use self-help to cut back on the encroaching tree or require the owner of the offending tree to pay for damages and to cut back endangering branches or roots. If such is not done within a reasonable time, the neighbor may even have the trimming done at tree owner’s expense.

As we said, nothing in this ruling prevents a landowner — at his own expense — from cutting any part of an adjoining owner’s trees or other plant life up to his property. It’s just that the Massachusetts says that’s all a landowner may do. Hawaii thinks differently. Tomorrow, we’ll see that Hawaii may be on the right side of history in this debate

 
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"Overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, material harm to a person or to property other than plant life"

So it seems the question really just boils down to whether or not the tree roots are the actual problem. If yes, seems it is definitely your bill to foot. 

A 30ft tree with those kinds of roots seems far fetched, but hawaii flora is obviously quite unique. I imagine the soil is too. If a neighbor confronted me about a 30ft maple, elm, ash, pine, poplar, etc. in our clay I would laugh at him. 

 
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How far away is the tree from his house?  As a structural engineer I would highly doubt that roots would cause any sort of foundational damage at a distance from the tree, and given your 5' retaining wall I doubt it.  Is there any damage to the retaining wall?   If the house was immediately next to the tree, then that is a different story.  Do Hawaii trees keep their roots near the surface?

Does he have any other trees or bushes on his property?   I had sewer issues and the sewer guy who came and scoped, snaked, and then dug out and replaced the sewer line said the roots causing the issue were likely from the bushes in front of our house versus the large tree in the middle of our yard.  Again I have no idea how the Hawaiian trees and bushes grow.

 
Why was I not tagged in this thread yet?

Serious answer, get a second opinion from an arborist and/or structural engineer. If you can document that they don't believe your tree is the problem, then I'd think you are done. The burden is now on your neighbor to prove your tree is causing the problems. Not just because he thinks so.

 
How far away is the tree from his house?  As a structural engineer I would highly doubt that roots would cause any sort of foundational damage at a distance from the tree, and given your 5' retaining wall I doubt it.  Is there any damage to the retaining wall?   If the house was immediately next to the tree, then that is a different story.  Do Hawaii trees keep their roots near the surface?

Does he have any other trees or bushes on his property?   I had sewer issues and the sewer guy who came and scoped, snaked, and then dug out and replaced the sewer line said the roots causing the issue were likely from the bushes in front of our house versus the large tree in the middle of our yard.  Again I have no idea how the Hawaiian trees and bushes grow.
The tree is roughly 8 feet away, so it is next to his house. The retaining wall appears intact. And it is a dry part of the island, so roots probably go a little deeper, but that is limited so what by poorly aerated clay.

Yes, he has other bushes and trees, many of which he has cut down. But this tree is the largest in close proximity to the bathroom where he’s noticed problems, and an area of cracked sidewalk. Not sure about his foundation concerns.

 
Why was I not tagged in this thread yet?

Serious answer, get a second opinion from an arborist and/or structural engineer. If you can document that they don't believe your tree is the problem, then I'd think you are done. The burden is now on your neighbor to prove your tree is causing the problems. Not just because he thinks so.
Yeah, I was going to get the first guy to officially write a report/estimate, then suggest the neighbor get a second opinion.

 
Yeah, I was going to get the first guy to officially write a report/estimate, then suggest the neighbor get a second opinion.
The problem is if he finds someone that says it is your issue, then what? If you're proactive and have 2 to start then you minimize that and it shows you are taking this seriously. 

If you ask him to get the 2nd opinion, I'd have a plan/agreement in place ahead of time about what to do next in case they contradict each other.

 
The problem is if he finds someone that says it is your issue, then what? If you're proactive and have 2 to start then you minimize that and it shows you are taking this seriously. 

If you ask him to get the 2nd opinion, I'd have a plan/agreement in place ahead of time about what to do next in case they contradict each other.
Good point.

 
Good point.
He'll have a hard time proving you have to do anything when you get 2 reports suggesting your tree isn't at fault. The extra couple hundred you'd spend now could save you lots more later plus saves your tree and gives you peace of mind.

If he gets 1 that contradicts your 2, that still isn't enough and will likely dissuade him from coming after you.

You'll probably have to agree on a 3rd objective report and split the cost and even then you're at the mercy of that final report.

 
Assuming the arborist thinks the roots may contribute to the plumbing issues, is this something I should file with home owner's insurance?

 
Assuming the arborist thinks the roots may contribute to the plumbing issues, is this something I should file with home owner's insurance?
Likely won't cover it.  I know with plumbing, it has to be a "sudden burst" to be cover.  Had a rental home where the builder put a nail through a pipe.  Took 10 years to rust out and the leak to appear.  By then there was structural damage to the home from wood rot.  Wasn't covered.  Now if a contractor had put a nail through a pipe and it had leaked everywhere in a matter of hours, it would have been covered.

 
Assuming the arborist thinks the roots may contribute to the plumbing issues, is this something I should file with home owner's insurance?
For my roots in sewer problem, I believe insurance would only cover if the sewer backed up.   Since your tree is causing damage to a neighbor that may fall under a different section :shrug:

 

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