A Brief Overview of Florida Tree Laws
When it comes to addressing tree disputes, the principal source of authority and guidance—much like other "cultural" disputes—is often a local one. This may be because early societies were more tree-dense. Or it may have been because the town brood has always had a fierce sense of boundary. In any case, there is no singular basis for determining the rights and duties of tree owners and aggrieved neighbors in Florida. Instead, mangroves, camphor, pine and oak are all reviewed, referenced, and relied upon based on the particular county a dispute arises in. And there are three main sources of authority for the resolution of those disputes: the common law, statutes, and local ordinances.
The common law applied to tree disputes in Florida is fairly straightforward. A tree owner has a responsibility to "…trim [his or her] trees and keep them trimmed, so as not to constitute a nuisance or an injury to persons or property …" Stevenson v. Buie, 119 So. 2d 245, 246 (Fla. 1st DCA 1960). Generally speaking, a tree owner is only liable for damages when it breaches what is considered the "topographical plane"—a tree’s height above ground. Sheppard v. Moore, 13 So. 2d 171, 173 (Fla. 1943). In other words, an owner is responsible for the height of her tree above adjoining property and not with a tree’s root system beneath property.
Whether an injured party can recover damages is dependent upon whether she has sufficient evidence to prove the offending tree broke the topographical plane when it caused injury. There are two types of damages that may be recoverable in tree disputes: (1) damages for trespass (such a diminution in property value and replacement costs), and (2) damages for negligence (any pecuniary losses not recoverable under trespass). These principles, however, have evolved into a larger constellation of other factors and circumstances (i.e., the "uncivil" neighbor rule, etc.).
In addition to the common law, there are several Florida Statutes that affect the scope of rights and responsibilities with respect to both private and public trees. For example, under § 163.045, Florida Statutes, "[a] person may trim roots and limbs of any tree or vegetation that extend into his or her real property." Depending on the type of tree, the statute may also require a notice be provided to neighboring spectators "before trimming" and grants the neighboring owner the right to hire a local contractor to trim the tree himself. Certain exceptions apply for owners trimming trees or vegetation "to prevent interference with the property owner’s usage of the property" but for an overhanging tree or limb that is "dead , diseased, or is so near the property as to constitute a potential danger to persons or property."
With respect to government-owned trees, local agencies are required to establish a "tree mitigation program" pertaining to "tree protection during site development," pursuant to § 163.045(2), Florida Statutes. At the very least, the program must include "replacement or mitigation", but there is no requirement to prompt local governments to compensate any neighbor of an affected property. Other statutes, out of the Florida Statutes that affect tree disputes typically involve specific areas of Florida’s environmental regulatory framework such as wetlands, plant and animal protections, and the preservation of endangered species.
In addition to the common law and various statutes on the federal and state level, many cities, counties, and other local entities have enacted ordinances and regulations governing trees. Unfortunately, throughout Florida, these ordinances are not uniform, and they vary substantially from municipality to municipality. Thus, an understanding of tree rights and responsibilities necessitates an inquiry into the particular ordinance and regulations of the City or County where the tree is located.
Much like the common law, local ordinances often establish a property owner’s responsibility to properly maintain the trees on her property and to remove nuisances from her property. Some local ordinances even require replacement trees to be planted on a property if a tree on the property is removed. These ordinances are often more detailed with respect to specifics of the tree species, maintenance requirements, and timing of replacement trees.
Tree ordinances, however, typically do more than establish rights and responsibilities with respect tree maintenance and removal. Some ordinances address the potential for trespass damages and may even provide a process for disputes to be resolved through the local government or by requiring neighbors to obtain a special permit from the city to prune (or remove) offending trees.
Finally, some local ordinances govern trees on private property and designate those trees as "specimen trees" or "heritage trees." Specimen trees are commonly defined by their height or diameter and heritage trees are often defined by their age or species. Ordinances designating trees as such often prohibit their removal or destruction without notification to the local government.
Where Are My Property Lines and Am I Responsible For a Neighbor’s Tree?
Property lines are a critical component when it comes to determining who owns which trees. In Florida, property lines are typically established by surveying. Legislative changes in 1971 adopted the "Orange Book" set of standards established by the American Land Title Association and the Florida Surveying and Mapping Society, Inc. It is important that you consult with your insurer, your surveyor, or your attorney if you cannot readily access the deed of record for your property and feel that your neighbor may be responsible for damage caused by a tree on his or her property.
When a tree straddles a property boundary line, the general rule is that each neighbor owns half the tree. Owners of a tree have a right to cut their portion of the tree (the half closest to their home) if the tree is carrying fungus or blight or the like, but they must avoid any actions to intentionally injure or destroy the neighbor’s half. The statute states that "each owner or tenant of land occupied in common with the owner or tenant of the adjoining land, of a tree whose trunk straddles the partition line between them, may enjoy the tree and share equally the burden of caring for, keeping up, and maintaining the tree." If either neighbor fails to keep their half of the tree maintained or even allow the tree to not be a nuisance, the other neighbor may trim the branch or roots before they cross the property line without being found responsible for damages.
So that begs the question, do my roots extend into my neighbor’s yard? A case in 1978 in Florida dealt with a homeowner whose roots invaded their neighbor’s property. The court held that "a tree owner, by planting a tree, becomes custodian of a natural instrumentality that both exercises a certain volitional control over it and also causes a nuisance-like invasion of the property rights of its neighbor by reasons of its roots or branches … when those roots or branches have extended into the land of another." It could then be private nuisance or trespass if the tree owner’s roots invaded the neighbor’s land. Further, if a tree falls onto a neighbor’s property when struck by lightning or damaged by a hurricane, there is no liability, unless the tree was dead or dangerous.
Can I Cut a Neighbor’s Trees and Limbs Over My Property?
It is well-established under Florida case law that a property owner is entitled to trim branches and roots of a tree growing on a neighbor’s land when they encroach on his property. See Fennessey v. Engel; 56 Fla. 474, 47 So. 903 (Fla. 1910). However, Florida law does require the neighbor to give notice of intent to trim for some encroaching roots before doing so.
Pursuant to Florida Statute 163.3201 (5) If a portion of a tree or shrub extends over a property line, the property owner may cut off the portion that extends over its property line.
Florida Statute 163.3201 (5) also states the property owner must give notice of intent to trim before trimming the encroaching roots of another’s tree and that a municipality will not be found liable for damages if the trimming proves to be unnecessary. The homeowner may not enter onto the property of another without express permission.
In Board of County Comm’rs of Brevard County, Fla. v. Snyder, 379 So. 2d 634, 640 (Fla. 1980), the Florida Supreme Court established that Florida recognizes the common law tort of irreparable injury to property rights. Under Snyder, a property owner who has suffered irreparable damage to property has no adequate remedy at law and is entitled to relief by injunction alone.
Am I Liable If My Tree Damages My Neighbor’s Home?
On rare occasions, an owner of a tree may be liable for injury caused by the tree. For example, if a tree has been weakened by disease, decay or insects, or if it is dead, it is the owner’s duty to cut it down if it is in an area where it is likely to do harm if it falls. Violation of this duty can result in liability to a person who is injured as a result of the owner’s failure to take responsibility. This is true only when the tree falls without warning.
On the other hand, the owner of a healthy tree that has fallen on the property lines of two owners is not liable for damage to the adjoining lot. Under these circumstances, the two owners must usually share the costs of removal of the fallen tree.
Resolving Neighbors’ Tree Conflicts
When disputes over trees arise, your first step should be talking to your neighbor. It’s not uncommon for neighbors who had a good relationship to first have a chat about the tree’s impact on their lives, and collaboratively coming up with a solution. For instance, if the tree is dropping fruit on the driveway and blocking sunlight, consider trimming the tree so it can continue prospering at a height that doesn’t cause problems. You’ll have to pay for the tree service, but you’ll both walk away happy.
However, there are instances when that approach doesn’t work. Some more drastic options include mediation or arbitration, which are more formal means of conflict resolution , although they’re less expensive compared to court. Arbitration uses a neutral third party to decide on a resolution (a process similar to binding arbitration in a contract between two parties), while mediation allows for discussion and negotiation between the parties. These have specific rules and processes, and you should contact an attorney who is well versed in conflict resolution for more information and assistance.
If nothing else has worked, the neighbor dispute may go to court. The purpose of this is to obtain a judgment that sets out what is to happen next, either to move the tree a certain distance, trim it, or even remove it entirely. Keep in mind that the judge may also rule in favor of the neighbor, thereby leaving the tree intact.
Local Laws and HOA Rules
As with many issues in Florida this side of the Sunshine Laws various local jurisdictions have adopted their own ordinances relating to neighbor trees. Thus, the specific nature of the tree law applicable to any given property may depend upon the trees location. For example, Charlotte County has its own unique neighbor tree law applicable to certain designated subdivisions. Certain other local ordinances may prohibit the removal of a neighbor’s Abacoa Buttonwood tree without prior approval, and others may apply differently to an older, non-Consolidated Declaration subdivision where planting and removal of species of trees outside of the regulated varieties is not expressly set forth in the governing documents. Additionally, if you live in a subdivisions governed by a homeowners’ association(s) your CC&Rs might have unique rules pertaining to the trimming or removal of neighbor trees. Homeowners’ associations may impose specific requirements Christmas trees, palm trees, and certain native species. If you are a homeowner you should check for possible restrictions in the governing documents for your community.
Recent Cases and Examples
Several key cases have shaped understanding of neighbor tree laws in Florida. While many of these cases are older, they underscore the importance of clear communication and reasoned behavior among neighbors to avoid conflict.
When a neighbor refuses to allow entry to survey or ascertain property lines and tree location, and that neighbor obtains an easement by acquiring a prescriptive title by adverse possession, that title is not absolute and may be challenged by the successful plaintive if they can show that they and their predecessors did not know of the easement during the 20 year period. See, for example, Schoner v. Surfside Sanitation Co. (1944). Adverse possession claims are typically rare in neighbor tree laws due to the inherent right of a neighbor to enter the property as long as notice is given by the property owner to maintain or take down vegetation such as trees on the property line.
Florida’s Settlement of Boundary Disputes Act, Fla. Stats. § 177.31, implies a welcome agreement by neighboring landowners to clear title against claims by the previous owners who used the disputed area as if it was their own . The act requires the neighboring owners to agree to the settlement and that the appropriate Florida Department of State form "Notice of Intent to File Notice of Settlement," F.A.C. 1T-1.003, be filled out and submitted. As part of the agreement, the neighbors must establish a "prescriptive title" that includes the actual boundary of the land and any improvements made during the time of adverse possession.
Parker v. Nash (1954), a seminal case in this area of law, established that the location of a tree does not have to fall directly upon the property line dividing two neighbors. Florida scholarly commentary explains the case as follows: "Fifty-eight years ago the Supreme Court of Florida stated the old rule and the maxim under the common law: "Where the boundary line of two property owners is marked by a substantial fence, wall or hedge so that it is clearly apparent from the surface of the ground where the line is located, it will prevail over the written or marked method of description and a tree growing through or on the line belongs to both owners in common." Clearly, the law was that the location of a tree governed by the property line was controlled by either a physical feature, such as a fence; or by an agreed-upon survey that was binding in the same way.