Trees

We love our trees in Arizona.  Aside from adding some pleasant color to an otherwise brown view in our desert environment, trees provide welcomed shade from the hot Arizona sun.  But trees can also be the subject of dispute when their roots or branches grow into neighboring property, or when leaves and flowers blow into pools.

Many disputes involving trees are purely neighbor-to-neighbor issues, requiring little to no action by a community association.  Inevitably, however, associations see their share of issues as well.  Perhaps the dispute involves an association-owned tree that is dropping leaves into a nearby owner’s pool.  Or an association member’s tree has roots that are causing the association-owned sidewalk to buckle and crack. 

According to a 1985 Arizona Court of Appeals case, Cannon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (Ct.App. 1985), a landowner may cut off offending branches or roots at his property line, regardless of whether the plant is poisonous or non-poisonous.  No notice is required for this self-help remedy.  Ultimately, the courts in Arizona place the burden on the offended property owner to “protect” him or herself from protruding roots or branches.  However, there is no right to trespass on the tree owner’s land (or airspace) to accomplish the self-help remedy.  Going on the other person’s property would require permission.  Likewise, the owner with the tree overhanging has no right to go onto the other owner’s property to cure the “trespass” created by the offending tree.

There are other potential rights.  When courts have examined the issue of liability for damages or other legal or equitable relief, they have generally held that the offended property owner has no cause of action unless there is some “sensible injury.”  There is not much guidance on what “sensible injury” is or is not.  Some cases have held that actual damage to a person or property other than plant life is sufficient.  While other cases have held a more conservative view in which offended owners essentially have no cause of action and can only exercise self-help – cut the tree limbs and roots at the property line.

In the end, if an association is observing tree branches or roots that are “trespassing” on association property and could cause damage, the association can exercise self-help and cut off the offending branches or roots at the moment they exist on the association’s property.  It is very important, however, not to enter onto property not owned by the association to exercise self-help without permission of the owner.  It is also very important not to cut any part of the tree that has not crossed over the association’s property line.

If the landowner with the problem trees is a municipality, rather than a typical homeowner neighbor, be sure to check with the applicable city/town.  For instance, Section 34-15 of the Code of the City of Phoenix makes it unlawful to cut, trim or interfere with any trees or shrubbery on the City’s property.  To do anything, you must contact the City Forester first.

If you have any questions about trees or have a dispute involving a tree and need some additional guidance, please contact Chad Miesen or any other attorney at Carpenter, Hazlewood, Delgado & Bolen, PLC.