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On Behalf of | Jul 21, 2014 | Real Estate Law |

A recent Land Court case, Bassin v. Fairley, 11 MISC 451773 (AHS) (Mass. Land Ct. June 17, 2014), provides a good reminder of the kind of inquiry a court will make when deciding whether a landowner can remove a tree that straddles a common boundary line.

In Bassin, plaintiff filed an action for declaratory judgment (with multiple claims), trespass, and seeking injunctive relief. Several counterclaims were also filed by the various defendants. After several motions and joint stipulations, the crux of the remaining issue to be decided on summary judgment was whether plaintiff could remove a sixty (60′) foot, thirty-two (32″) inch diameter tree (Tree B) that was located on the property line between plaintiff’s property and one of the defendant’s lots. The tree roots also extended under both lots. Plaintiff desired to remove the tree in order to proceed with development of her lot.

In a nutshell, plaintiff thought she had the right to remove the tree because it was partly on her property. She also argued that she had the right to enter onto defendant’s property in order to safely remove the tree.

Conversely, defendant argued that because the tree-meaning the trunk itself-was on both lots, neither party could remove the tree without each other’s consent.

The court (Sands, J.) ultimately sided with the defendant. Here are the salient points of law that the court noted (quoted directly from the decision unless noted otherwise):

  • The law is clear in Massachusetts that when a tree trunk stands wholly on one party’s land, that partly is considered to be the sole owner of that tree. Levine v. Black, 312 Mass. 242, 243 (1942). Should the roots or branches invade or overhang the land of another, that party has a definite right of self-help to trim the roots and branches to the extent they are on his property. Id.; Michalson v. Nutting, 275 Mass. 232, 234 (1931).
  • Rights as to the tree differ, however, when the tree trunk stands on the boundary line of two pieces of property.
  • Overhanging branches and invading roots are damnum absque injuria (“loss without injury”); they do not create a violation of an adjoining party’s rights. Michalson, 275 Mass. at 233.
  • The Levine court noted, with some confusion, in its brief review of the state of the law that property owners are generally treated as tenants in common of such a tree or as separate owners, each holding title to a portion of the tree and able to do as they wished with their portion of the tree, as long as it was not to the detriment to the tree as a whole. Levine, 312 Mass. at 243. “[I]t is difficult to see why either owner should have any less right to cut off branches and roots than he would have if the trunk stood entirely upon the other’s land.” Id. at 244.

In its analysis, the court also noted that the right to self help (cutting down the tree) is necessarily more restrictive in this kind of case, rather than what is typically found when a tree is wholly on one lot but branches (or roots) intrude upon an adjacent lot. This is because “[o]therwise, the party wishing to remove the tree would essentially have absolute power over the tree, by being able to cut the tree to the point of death, leaving the party wishing to keep the tree helpless.”

The court ultimately found that both plaintiff and defendant each held title to a portion of the tree and therefore neither could take any action against their portion to an extreme that would injure the tree as a whole.

This kind of finding is not necessarily the last nail in the coffin. The court also went on to note that even in such instances, there is potentially one way that the plaintiff could be allowed to remove the tree: if it constituted a nuisance. “While most trees are not inherently nuisances, they can be a nuisance, entirely or in part. Kurtigan v. Worcester, 348 Mass. 284, 288 (1965) (‘[T]rees can be a nuisance as much as can a dilapidated building or other structure.’); Jones v. Great Barrington, 273 Mass. 483, 487 (1930) (A ‘tree may become a nuisance by disease or decay.’). Ultimately, however, the court found that in plaintiff’s case, there was no nuisance shown, either from her own testimony or from the experts.

Clearly the best option in these kinds of cases-where there is a tree located on a property line but it is not causing any kind of actionable nuisance-would be for the landowner wishing to remove the tree to try to negotiate consent from her neighbor. It may be that there is no mutually agreeable solution. But to remove the tree without such permission would, as we know, subject the landowner to some potentially serious financial consequences later on.

And, interestingly enough, we discussed the Levine case almost two years ago, pondering this very issue. Turns out we were not far off in our analysis.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.


Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.


Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.


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