Landlord Tree Responsibility

Landlord Tree Responsibility

Last Updated: June 8, 2023 by Cameron Smith

A landlord usually does have to clear fallen trees, if those trees interfere with or possibly endanger other people. Trimming is also generally legal for anybody who controls the space being trimmed.

Responsibility for Trees on Rental Property

The basic rules for trees are deceptively simple: trees need proper care when they create a foreseeable risk to health and safety on a property, and they are the responsibility of whoever controls the ground where the tree grows. Rental agreements and local laws often govern how these rules apply.

Exclusive Use

The best way to determine responsibility for a particular tree is to ask whether it’s in a place set aside for the exclusive use of one tenancy. If it is, the tenant will have primary responsibility to notice issues and deal with them using reasonable care. In most other cases, the responsibility for reasonable care belongs to the landlord.

For example, a tenant has primary legal responsibility for trees in a fenced backyard that they rent. On the other hand, the landlord is responsible for trees in a common area outside an apartment, because the landlord has primary control of that space even if it’s used mostly by tenants.

Obligation Against Waste: A Limitation on Tenant Control

Although tenants have freedom in access and use of housing they rent, they are not allowed to “waste” property. “Waste” is a legal term meaning any change to a property which could reduce its value or change its fundamental character.

Since trees are a unique and valuable feature of property, in most cases tenants can’t cut trees down, replant them, or make other similar changes without the landlord’s specific permission. Even in areas that a tenant exclusively controls, in most cases a tenant can’t do more than minor trimming without the landlord’s permission. This is frequently an area where the policy is set by agreement in the lease.

Trees from Other Properties

The most complex problems with trees often involve neighbors. Overhanging branches and encroaching roots are usually straightforward: in most jurisdictions, someone who exclusively controls a space can trim roots and branches which extend into that space. However, for something like a tree trunk straddling a property line, there usually is a joint interest involved and the tenant must get the landlord in touch with the other property owner to plan a solution.

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Landlord Duties of Care for Trees

Landlords have two different sets of obligations when it comes to trees and rental property. They have a duty to the government and to tenants which requires keeping a property up to code. They also have a (much more non-specific) duty to manage in a way that provides reasonable safety for everyone on the property.

Negligence and Reasonable Care

When a tree creates a potential hazard to health and safety in an area the landlord controls, the landlord must address the risk and provide reasonable warning for anyone who might be unaware. For example, if there’s a rattlesnake living in a fallen trunk, a landlord might be liable without posting warnings and arranging for proper removal of the snake and tree.

This duty is general and proportional. General means it’s a non-specific duty where any potential hazard to health and safety might qualify. Proportional means the landlord’s responsibilities are more serious or less serious depending on the specific risk. Annoyances and cosmetic issues generally don’t violate the standard of reasonable care. A landlord probably doesn’t have to do anything with a few branches fallen off to one side of a walkway, but might have to act immediately for a tree fallen across that same walkway.

Local Codes and the Tenant’s Warranty of Habitability

In addition to the landlord’s general duty of reasonable care, the landlord owes the government and the tenant specific responsibilities relating to habitable housing. The government can fine a landlord who doesn’t deal with trees according to local code.

States are divided on what tenants can do if a landlord isn’t in compliance. Some states let a tenant take legal action against a landlord for all noncompliance. More commonly, the tenant can only force the landlord to act on serious threats to health and safety. This means that in most cases, a landlord has to deal with a tree that falls through a roof, but not one that falls in (for example) a corner of a common area.

Additional Issues

With trees on rental property, in many cases it’s enough to know who’s legally responsible and what kinds of situations require action. This section covers some extra complications which commonly arise.

Trees and Property Insurance Claims

In a potentially confusing twist, the party responsible for damage related to a tree is usually not the party who has to call their insurance company. The standard procedure is for the injured party’s insurance to pay out after confirming the injury. After that, if appropriate, the insurance company will recover its expenses from the party that’s legally responsible for the damage.

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Liability for DIY Maintenance of Trees

Professional tree trimming and removal can cost thousands of dollars, which creates a temptation for landlords and tenants to do tree maintenance themselves. This is legally risky. The person doing the work is directly liable, and amateur maintenance has a higher probability of mistake. Insurance will often refuse to pay when there’s an injury or an accidentally damaged tree resulting from DIY maintenance. This contrasts with properly licensed and bonded tree care professionals, who carry insurance covering accidents and unexpected complications.

Issues with Leaves

Leaves are a frequent and recurring nuisance for neighbors who live downwind of someone else’s woods. Unfortunately, this is a case where there’s usually no legal responsibility to gather leaves or take any specific action. However, someone who lets leaves pile up on their property may be liable for creating a fire hazard in certain cases.

Fruit Trees

Rules regarding ownership of fruit on fruit trees varies by state. In some cases, the tree’s owner has legal rights to all fruit, even when that fruit is hanging over someone else’s property. More commonly, people can pick fruits from outside trees that hang into space they occupy.

Acts of God / Force Majeure

Landlords and tenants are both generally only liable for foreseeable issues within their control. There’s no liability for tree issues which arise from wildfires, hurricanes, and similar disasters and acts of God, except when the damage could have been avoided with ordinary and reasonable care. Because of this, property insurance often doesn’t have to pay for such damages, either.