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Tree Damage Two Ways

Question: My neighbor's tree is a problem. It drops lots of leaves in my yard, discoloring my driveway and its roots reach to my pool deck. I want to sue my neighbor for nuisance and force him to cut down the tree. Can I win that case?

Answer: Problems caused by a neighbor's landscaping are frequent in Florida. Plants grow so fast that what is not a problem when you first move in quickly becomes an issue.

Sadly for you, Florida follows the majority rule of the common law we inherited from England. Under Florida law, your neighbor is not liable to you for any nuisance caused by overhanging branches or roots, falling leaves, seeds or fruit. At common law, a land owner also has no legal right to unobstructed light, air or view from a neighboring property.

The leading case on Florida in this issue is Gallo v. Heller, decided by the 3rd District Court of Appeal in 1987. In that case, Gallo sued Heller because Heller's Ficus and Melaleuca trees were damaging Gallos property. Damage included damage to the roof by tree branches, sidewalk cracking from tree roots, Melaleuca leaves falling on Gallos property causing their dog to contract a severe allergy and shade from the trees caused some of Gallos' landscaping to die.

The Gallo court ruled that Florida follows the common law and that a land owner is not liable to persons outside of the land for a nuisance resulting from trees and natural vegetation. The court stated the underlying rationale is as follows: "It is wiser to leave the individual to protect himself, if harm results to him from this exercise of another's right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious."

The court explained that the Gallos did have a right to trim back the vegetation, including limbs and branches, to the property line at Gallo's expense. That right can be exercised even if the trimming kills the tree or shrub.

A different rule applies where the damage is more than nuisance. If a tree or limb falls and causes personal injury or significant property damage, the tree owner may be liable for negligence. Although it may seem like a difference in degree only, the property owner is obligated to maintain safe premises but is excused from landscape nuisance to adjoining property.

Some neighbors don't want to stop their tree trimming at the property line and actually remove or destroy the offending trees or shrubbery from their neighbor's property. That action would subject the "trimmer" to possible criminal prosecution as well as civil action by the property owner. If criminally prosecuted, the value of the damage would determine if the action was prosecuted as a misdemeanor or a felony. If prosecuted, restitution would likely be ordered in addition to any other penalty imposed by the court.

The owner of the damaged property could also file suit. The damages in that case would likely be measured as the value of the destroyed landscaping.

If the value of the property is diminished by more than the replacement cost of landscaping, the diminished value may be awarded by the court. That might be the case where the property has landscaping of historical value.

If the action is clearly intentional, the court might also impose punitive damages in addition to the value of the actual loss. Punitive damages are imposed for action particularly heinous to punish the wrongdoer and deter others from engaging in similar conduct. Attorney's fees are not generally recoverable in these actions.

These cases can be complex and emotions often run high. Before proceeding further, I suggest you discuss your circumstances with an experienced attorney.

By: William G. Morris, Esquire

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