Boundary Line Trees in the State of Washington
As we increase the density in our cities, boundary disputes arising from trees with overhanging branches and/or encroaching root systems have increased. Generally, Washington State allows an adjoining landowner to engage in relative freedom for self-help to trim the branches and roots encroaching from a neighbor onto his or her property. However, trimming and root removal issues that evolve into a neighborly dispute rarely tend to be factually straightforward given the history and uses of the respective properties. More recent disputes have highlighted how neighbors (and the Courts) treat boundary line trees separately from encroachments. Although the facts and rulings in Washington cases have been complicated, one thing is certain, boundary line trees are treated differently than the run of mill encroaching branches and roots.
There are a number of factors to consider when looking at a boundary line tree dispute. The first (and most important) question is, is the tree on the boundary? This may sound simple; is the tree on the boundary line or not? However, theories of adverse possession, use and property history frustrate what may have otherwise been a “yes” or “no” question. (Link to Adverse Possession Article). If the area does not meet the elements of adverse possession and the tree base is on either side of the boundary line, you likely have a boundary line tree.
A boundary tree is a "tree standing directly upon the line between adjoining owners, so that the line passes through it ...." Happy Bunch, LLC v. Grandview North, LLC, 142 Wn. App. 81 at 93 (2007). Such a tree becomes the common property of both landowners...; and trespass will lie if one cuts and destroys it without the consent of the other." Id. Because those trees are considered common property, both owners have an undivided property interest as a cotenant in the tree and a duty to one another in use of the same. Herring v. Pelayo, 198 Wn. App. 828 at 836 (2017). The owners of a boundary line tree are entitled to use, maintain, and possess the boundary tree as a cotenant, but “not to destroy the common property and thereby interfere with the rights of the other cotenants." Id. 836-837. To support its ruling against a neighbor that ultimately destroyed a boundary line tree [the confusing facts of the case show that both parties took their own form of self-help with regards to the tree…unfortunately only one neighbors acts “killed” the tree], the Court in Herring v. Pelayo, reasoned that, unlike an encroachment from a tree entirely one property, a boundary line tree cannot be an “encroachment” because both parties have an ownership interest. This eliminates the otherwise cavalier ability of a neighbor to trim back the roots and branches of a “encroaching” tree from another property. So what does this all mean?
If you are a neighbor with a boundary tree, you have an additional duty to your cotenant neighbor with regards to a boundary line tree that otherwise would not exist. You are not allowed to freely trim the branches and roots without regard to the health of the tree or your neighbor. The Court in Herring v. Pelayo stated “in recognition of the long recognized lawful authority to trim overhanging vegetation, the lawful authority to use and maintain property held in common with a cotenant, and the plain language of the timber trespass statute, we hold that where a tree stands on a common property line, the common owners of the tree may lawfully trim vegetation overhanging their property but not in a manner that the common owner knows will kill the tree.” If action is taken by an adjoining landowner that is found to violate this duty, that landowner may be subjected to the treble damages associated with timber trespass statute in Washington State. RCW 64.12.030.
The emotions, stress, and damages that stem from timber trespass and neighborly boundary line disputes must be considered prior to taking any action with regard to a boundary line tree. In order to fully understand the properties in question (and the respective rights of each), one need take a deep dive into the history of the relevant properties, surveys, and the use of the properties. Boundary line tree disputes tend to be fact intensive and highly emotional matters that require a critical analysis by attorneys familiar with this area of law prior to taking action. If you have any questions about Boundary Line Tree issues, contact a real estate attorney at Holmquist & Gardiner anytime. We are here to help!
