Overview of Florida’s Tree Laws
The state of Florida has a number of laws that dictate not only how property owners may deal with trees growing on their property, but also what their obligations are regarding those trees as well as those which pollute their neighbor’s property. The primary law governing neighbors’ rights to trim or remove trees from one another’s property in Florida is Florida Statute § 163.321. That law provides that a neighbor may remove a tree from a neighbor’s property so long as the tree is damaging or poses an imminent threat to the neighbor’s property or structure.
The general rule in Florida is that trees are your property , whether you care to think they are unpleasant or not, they are yours and no one else’s. While this may make for some disputes between neighbors, most folks are able to get past them without the need for any attorneys.
Who Owns the Tree? Who’s Responsible?
Under normal circumstances, a tree is considered the absolute property of the owner of the land upon where the tree sits. Fla. Stat. § 163.3201(4). This means that if your tree impinges upon your neighbor’s property, you may very well have the right to trim back encroaching limbs, providing that you do so carefully and with care not to cause any unnecessary harm to the tree. What is less clear, or at least less litigated, is who has the right, and who has the responsibility to take care of the tree? If overhanging branches are not burdening the use of the neighbor’s property too severely, are there instances where the tree must be removed?
In Becker v. Fernandez, 56 So. 2d 447 (Fla. 1952), the Court held that one land owner cannot be obliged to prune a tree overhanging his property particularly if it does not constitute a nuisance, that is, if no serious damage can be done upon a showing of continued and repeated encroachment of the roots and branches. Id. at 449 (internal citations omitted). In other words, some overhanging branches or invasive root systems are tolerable, but if the tree is inflicting real damage, then it is subject to being removed. This principle has been followed by Courts of Appeal in at least two other cases. See Scheiber v. Perkel, 242 So. 2d 208, 209 (Fla. 3d DCA 1970) ("One man is not required to do a thing which is a substantial burden upon him in order to give and advantage to another. In other words, a property owner not only has the right to, but under such circumstances is obliged to trim tree or branch roots growing on his property which trespass upon the property of another."); Davis v. Muir, 528 So. 2d 532, 533 (Fla. 5th DCA 1988) ("We conclude that a property owner is entitled to the removal of foreign roots encroaching upon his property. Such removal is not a nuisance. The removal of the roots, even if such removal kills the tree, is not actionable.") (citing Sheiber). The take away from these cases is arguably that, depending upon the circumstances, a neighbor cannot erect an overhanging tree that encroaches on your property; and if you have the burden of maintaining such a tree, you also have the duty to remove it, at least if it is causing real damage.
Florida’s Right to Prune or Trim a Tree
Under Florida law, a property owner has the right to enter onto their neighbor’s land to trim or prune a tree that is overhanging onto that property owner’s land. This "tree trimming rule" is only applicable to common areas or areas of common adjoining ownership. In other words, the tree must literally have roots on both sides of the property line to permit the utility easement. If, however, the roots of a tree extend into the neighboring property, the neighbor may cut back any roots that are encroaching upon the neighbor’s property. The owner who cuts back the roots cannot go onto the neighboring owner’s property to cut back the roots unless expressly allowed by law or a court order.
There are a few general limitations to the tree trimming rule:
While the law allows the neighbor the right to trim or prune the tree to the property line, the courts in Florida recommend that any tree trimming or pruning be done "by the light of nature" so that "the rule of reason will protect your neighbor’s property rights from unreasonable invasion." As such, while the law grants a neighbor a right to trim or prune the tree as to provide access, the law does not grant a neighbor a right to disturb or damage the other owner’s trees, structures or landscaping. So, while the tree trimmer must remove the obstructions from the neighbor’s propertyline, it would not be adviseable to expose the root system where there is no obstruction, or to dig into the ground to potentially disturb root growth or underground pools.
What to Do if a Neighbor Damages Your Tree
A common type of property disputes between neighbors involves trees. Trees can cause problems for a neighbor both when the tree is dead or dying (causing aesthetic issues or safety issues), and even when the tree is healthy, if the roots or branches encroach upon the neighboring property in some manner.
In many cases, the parties can discuss their concerns with each other and resolve the matter amicably. Diligent property owners and neighbors will even attempt to reach out to each other early in the process, so that no harm comes to the property itself and the matter doesn’t grow into a contentious situation.
However, in some cases a peaceful resolution cannot be reached without taking more formal steps. In Florida, property owners have a statutory right to cut off a tree’s roots or branches that encroach upon their property. But statutes also provide for damages for any damage caused by a tree encroaching upon the neighboring property.
The most common resolution to tree disputes is to simply reach an agreement between the parties. Many common home-owner associations have their own rules and regulations that deal with trees and tree disputes. A property owner and his or her neighbor will often refer to these rules and regulations during the resolution process.
Sometimes an agreement cannot be reached, even after substantial effort by one or both parties. For example, parties may disagree as to the value of a particular tree, especially if that tree is healthy and well maintained, and the non-responsible party requests money to plant a similar tree on their property.
If the parties cannot reach an agreement, legal action can sometimes be taken. There are provisions in Florida law that provide for rules of procedure when bringing tree disputes to courts. But again, it can be a fairly expensive route to take if the parties do not already have adequate documentation and proof of damage to their respective properties.
If there is a reasonable expectation that the matter will be resolved in court, the parties should give serious consideration to having a licensed landscape architect evaluate the tree species, condition and value before proceeding. In the case of a dying or diseased tree—where the cost of removal will be substantial and jumping of roots or trimming branches could even be dangerous to the trees’ health—an opinion from a licensed arborist may also be necessary.
It is not uncommon for parties to obtain estimates for the work that needs to be done to the tree. If that work can be performed quickly, this could bring the matter to a quick resolution before further damages can occur.
In some cases, a party may consider that the matter is large enough and the resolution process all but guarantees that it will end up in litigation. Even in such cases, it may still be in both parties interests to attempt mediation before resorting to litigation. Mediation is a process, governed by statute, where parties will attempt to sit down with a neutral third party and attempt to resolve the matter in a civilized atmosphere.
Legal Implications for Trees and Neighbors
Damage from a Neighbor’s Tree
A tree falling during a storm and damaging a neighbor’s property can lead to questions about legal liability. Florida law provides that a property owner who is injured by the encroachment of a tree or other object or substance from a parcel owned by another is entitled to damages and/or injunctive relief from any encroaching tree, object or substance. A property owner may recover the costs of remedying the encroachment. Also, the court may award damages for past and future injury. A property owner is entitled to injunctive relief in the form of removal of the encroachment and costs therefore. In Panico v. Curtis, 834 So. 2d 835, 837 (Fla. 4th DCA 2002), a property owner lost a counterclaim at trial seeking monetary damages for the destruction of property caused by the root system of a neighbor’s tree. The court stated that "a landowner is strictly liable for damage his tree has caused even if he did nothing to allow the tree to become a problem." Id. citing Broadmoor Condo. Ass’n on behalf of Ocean Sky v. Leavey, 574 So. 2d 1052 (Fla. 4th DCA 1991). However, the law provides that owners of adjoining or nearby properties owe each other no duty not to have roots encroach on the property of the other . In particular, Section 163.04(1) of the Florida Statutes provides: "No person shall erect any fence, wall, or other structure which will materially obstruct the free passage of water along any natural or artificial watercourse." This law is important in Neighbor Wars because it states that if your neighbor’s tree falls down and damages your property, then you will likely be found partially responsible by either contributory negligence or comparative fault (depending on the date of the loss and/or the judge). If your neighbor’s tree encroachment harms you, you will have to mitigate damages and remove the part of the tree on your property before it damages you. If a tree falls on the road (the public right of way) and causes damage to your vehicle or you suffer personal injury, be aware that the government entity owns the road and the government will be found to be partially at fault, if not fully at fault, for your property and/or person damage. Therefore, you will need to seek the services of an attorney who focuses his practice on automobile and/or catastrophic injury and/or premises liability cases.
Statutory Protected Trees and Trees Covered Under Conservation Area Laws
When it comes to tree law in Florida, it is important to look out for protected trees and conservation ordinances. A recent case in Lee County shows just how costly it can be to dump a tree without the proper permits. The residents of Thornton Woods are disputing the order to pay $20,250 in fines for cutting down one Sabal Palm tree and one Pine tree. The court for Lee County ruled that the Thornton Woods residents would have to pay a fine of $150 per day per trees.
There are several trees that are protected under Florida law. You can find a list of some of them below:
Not only the state but also local governments protect protected trees. An example of a local ordinance for the city of Fort Myers can be found here. According to the ordinance, if a protected tree is damaged, destroyed, or removed without a permit, the violator can be fined up to $5,000 for each tree. The fine can be broken up into a daily fine of $200 for every day after the order is issued until the violation is corrected.
Other cities and counties have their own ordinances regarding protected trees and trees on the property. Check with your city’s website to find an the correct information for your area.
Resolving Tree Disputes Without Litigation
Good fences make good neighbors, and this old adage applies equally to trees. It is always best to resolve boundary issues without litigation. Here are some good starting points:
Step 1: Talk to Your Neighbor
The easiest and best method of avoiding costly litigation is to simply talk with your neighbor about any tree problems or disputes. Your neighbor is entitled to prune roots or limbs of a tree that interfere with his property. Landscape trees need some pruning to maintain health—not only to reduce how many leaved fall into your pool! Sometimes, a tree which is perceived to be in the way of a boundary fence may be found to be on your side after carefully considering the facts. A simple honest discussion at the outset can often prevent more serious issues later on.
While a sincere effort of find a common solution is preferred, even when your efforts at dialog are rejected, it is still useful to put concerns on the record in writing. Either start with a cordial note, or if necessary, say that "We value our good neighborly relations and appreciate your advance input before we enforce our legal rights." If you properly follow the steps below and take care to detail your legal notices in writing, you will not be found to have "unreasonably" denied your neighbor the opportunity to address the issue in advance of litigation.
Step 2: Send A Certified Letter to Cut Back Trees and Limbs
If your neighbor has ignored prior discussions, the next step involves a written request to trim trees or limbs at issue. While no specific "legal notice" is required by Florida law, you should request him to cut back the trees or limbs interfering with your property or "likely to become dangerous" not less than thirty (30) days prior to cutting them, with a copy of this same letter sent to him via certified mail.
Step 3: Get Photos
With some foresight, you may be able to preserve photographs of the trees at issue so that they are dated and clearly show the challenged limb or roots. Obtain photos of your landscaping and fences, and of the tree or other structure on the other side of your fence. If someone has to climb a ladder to get the highest branches, go for it! Keep these photos for trial. If your neighbor does some pruning on his side but you want the tree or roots removed from your side, and you feel he has failed to do his share of the work to manage the tree, save photos of the tree afterwards to show how much further the roots or branches extend over your land or how the tree still poses a risk of damage to your property.
Step 4: Consider Mediation
Sometimes, when your neighbor knows nothing about tree law but is willing to negotiate, it helps to consider alternative dispute resolution or mediation. If a tree is healthy, but overhanging your property, perhaps you consent in writing to the neighbor pruning off the overhanging limbs, and he consents to pay you a reasonable sum for this service, or to keep the tree trimmed to help you avoid future costs to cut the tree back each year.
Step 5: Seek Professional Help
Inevitably, if negotiation does not work, the trees will have to be cut by a professional tree banger, and you will have to have an attorney file suit (unless there is a reasonable request to attend mediation or abate/cut back the subject tree). Your attorney will enforce the legal notices you have already served, and protect your right to recover your damages and the costs of cutting or pruning the trees which have become a problem on your property.
Seeking Help: Available Resources & Legal Guidance
Florida residents can access a variety of resources to gain a better understanding of their tree law rights and obligations. The Florida Division of Forestry offers comprehensive information on state forestry laws, including the Urban Forest Stewardship Program, which promotes healthy urban forests through various resources and initiatives. Furthermore, the Florida Chapter of the International Society of Arboriculture provides educational materials and resources related to tree care, maintenance, and the importance of trees in the community.
Local legal aid organizations, such as Florida Rural Legal Services and South Florida Suncoast , can provide free or low-cost legal guidance and representation for those in need. For more complex legal issues or disputes, contacting a licensed Florida real estate attorney with expertise in property disputes may be the best course of action. These professionals can offer valuable insight and representation in cases involving noncompliance or ordinances pertaining to tree laws.
Finally, individual county websites can offer additional information on local ordinances and regulations. For example, Hillsborough County Tree Ordinance is a useful resource for residents of the greater Tampa Bay Area.
