The Trouble With Trees -- The Law May Be On Your Side, But Mediation Could Bring A Happier Solution

It's about as sure a case of cause and effect as you can find around here come a big storm.

First the winds blow in. Then the limbs - or whole trees - blow down. Next the damage is tallied, and then the phones start ringing in attorneys' offices all over town.

"Do I have any recourse?"

For my neighbor's branches on my roof . . . or pine needles littering my driveway . . . or an entire fat tree trunk across my car, fence or house. (And while we're on the subject, let's discuss encroaching branches or roots onto my property and trees that block my view.)

Yes, we are a litigious society, aren't we.

Attorney and author Victor Merullo has heard it all, so much so that the National Arbor Day Foundation has put the Ohio-based Merullo on the road to lecture about his special area of interest, "Trees, People and the Law."

Merullo, who also teaches at Capital University Law School in Columbus, Ohio, gave his presentation in Seattle recently at the Center for Urban Horticulture.

From a national perspective, Washington doesn't have much specific tree law, says Merullo, who finds that ironic considering the fact that we are, after all, the Evergreen State.

But in one major way, we're no different from folks anywhere: We treasure our trees and our property rights, a combination that can lead to high conflict.

"People get passionate; they take their trees very personally," Merullo observes. "The basis of dispute among many neighbors is trees. They argue about leaves, overhanging branches, shade."

Because legislatively-enacted tree law is so sparse here, much of Washington's law is based on precedent set by court cases.

For example, Merullo cites the case of Costina vs. Ryland. The court ruled that if a tree's branches encroach onto a neighboring property, the owner of that property may trim the branches back to the property line. However, that owner may not go onto his neighbor's land to do so, nor may he do such aggressive trimming that the tree is damaged.

Ever since this case was settled in 1921, that's been the rule of law in Washington.

Then there's Thompson vs. Dale. The two were neighbors and the contentious tree was the Dales' hemlock. It had a split trunk, and half the tree thudded onto the Dales' cabin. This worried the Thompsons, who had the tree inspected and offered to pay half to have the hemlock removed before the remaining trunk fell on their property.

The Dales refused, and two years later the same tree toppled, damaging the Thompson home. The Thompsons sued, claiming negligence. The Dales countered that they weren't negligent because they had no notice that the hemlock might fall on their neighbor's home.

Not so, said the court ruling for the Thompsons. It held that the Dales had ample notice because of the prior accident.

In his private law practice, Merullo says he frequently hears from homeowners who, like the Thompsons, fear their neighbor's tree is hazardous and fret because the neighbor refuses to take action.

Here's what he does:

First, he suggests the fearful neighbor hire a certified arborist to evaluate the tree and write a report. If the arborist finds the tree is indeed dangerous, Merullo then sends its owners a letter.

It says, in effect: An arborist finds your tree is hazardous. If you choose not to deal with it you must inform your insurance company that you are negligently maintaining this tree.

"Usually this is sufficient," Merullo states. "If you get a letter that says your tree is dangerous, you have to take that seriously. Homeowners' insurance doesn't pay if you knew the tree was hazardous."

Many other situations aren't hazardous; they're just annoying - like trees blocking prized views or dropping debris on neighboring property.

As far as views are concerned, occasionally neighborhoods have restrictive covenants protecting them. Rarer are local ordinances doing the same. Thus, Merullo says, the trees usually rule.

(And lest anyone contemplate a little clandestine midnight pruning, he points to a state law that awards triple damages to the owner of the violated flora.)

As for the debris problem, Merullo believes that under Washington law, this constitutes a nuisance, and the owner of the shedding tree is responsible.

But as arborist Scott Baker points out, it's not always easy to get a handle on this common problem.

"You'd be amazed how many times debris is the issue," says Baker, "and it might be leaves, needles, twigs after a storm - basically the natural shedding parts of the tree. But often times there really is no damage, although it does clog gutters."

Still, Baker has seen people cut down the offending tree only to discover later they're still getting debris. In windstorms, it's flying in from foliage all over the neighborhood.

And something unanticipated also can happen: With the tree gone, so goes its value.

"Many times I've removed a tree and people are saddened," Baker observes. "They didn't realize the great effect the tree had on their property, or its benefits. A tree provides shade, a windbreak, and produces a lot of clean, invigorating air."

It also processes considerable water, and once a big tree is removed, that water has to go elsewhere. Unless owners deal with this, they may experience everything from soggy basements to land movement.

Then there's the financial loss. "People don't realize," observes Baker, "that in an appraisal, up to 15 percent of the value of their property is in the landscaping. It's not uncommon to see a mature tree valued at $10,000 to $20,000."

And the unhappy truth, this arborist says, is that often neighbors want those trees gone for no valid reason.

"They see a big tree near a house, and they can see it crushing a house to the ground. But that's probably the exception, rather than the rule."

Baker says there are reasons to be fearful of trees, "but those should be based on an educated assessment by a certified, experienced arborist."

What if an arborist does verify the roots from someone else's tree are damaging your property - another common complaint around here - and you can't reach a solution either by talking with the neighbor or firing off a lawyerly letter?

There's always court.

In a case of marauding roots, "technically, legally, it's encroachment, and if the encroachment is causing damage then you'd have a claim for damages," notes Seattle attorney Ken Hart, of Larson Hart & Shepherd.

To collect means to win a civil lawsuit, which Hart warns could generate legal costs greatly disproportionate to the damage caused.

"The problem with litigation is that by its nature it's unpredictable in its cost. If the other party resists vigorously it can be extremely expensive."

How expensive? Hart recalls a case where a battling neighbor racked up $25,000 in attorney's fees in an aggressively contested case that was ultimately settled out of court.

Even those lawsuits that don't cost big bucks can take a toll. "They're highly charged, they're emotional, and very much like divorce in the amount of angst people go through," he says.

But before taking it to the judge, Hart strongly encourages one last step: bringing in a trained mediator. As he points out, "Why do you want to be in litigation with your neighbor? It's like getting a divorce and then living together."

At the Dispute Resolution Center of Snohomish & Island Counties, Executive Director Laura Pierson sees numerous neighbor-to-neighbor disputes. Often they build, she says, because the parties are initially reluctant to voice their concerns for fear of causing conflict.

"Then the resentment starts and it escalates," Pierson explains. "If they can find a way to talk to each other, and find out what each others' needs are, they can figure out a win-win."

Using one of the 150 trained volunteer mediators on Pierson's staff, the neighbors "first just tell their stories, their perspectives, then they start talking to each other with the mediator there."

The result is that many, many times, "we have people shaking hands or going out for coffee," Pierson concludes. And that's a whole lot better than battling over a tree. ------------------------------- The right tree

In order for a tree to be a good neighbor, it must be the right size, shape and species for its location. To get a free guide to proper tree selection, send your name and address to "The Right Tree for the Right Place," National Arbor Day Foundation, Nebraska City, NE 68410.