NFCCA

Stories from the NFCCA Newsletter, the “Northwood News”

Northwood News ♦ April 2007

You, Trees, and Montgomery County Law

By Linda Perlman

Roadside Trees

Trees growing within the right-of-way of a public road are considered “roadside trees” under the Maryland Roadside Tree Law.  The public right-of-way generally includes not only the paved portion of the roadway, but also the sidewalk and any greenspace between the sidewalk and the road.  Any activity that can affect the health of a roadside tree — such as removal, pruning, planting, and root cutting — requires a permit.  However, no permit is required to cut down or trim a roadside tree that is unrooted or has its branches broken so as to contact or interfere with utility wires, or if the tree or its branches endanger persons or property.

Locally, roadside tree maintenance is performed by the Division of Highway Services of the Montgomery County Department of Public Works and Transportation (phone 240.777.7623) under a Roadside Tree Public Agency permit granted by the Maryland Department of Natural Resources (DNR).  If a roadside tree on a state-maintained road (a numbered road, such as Route 29, Colesville Road) needs trimming or other maintenance, you should contact the State Highway Administration (SHA local field office phone 301.948.2477).  Trees also are trimmed by various utility companies, most commonly PEPCO, to minimize problems caused by tree branches interfering with electrical lines.  (Asplundh is PEPCO’s tree contractor; you have probably seen their orange trucks on local streets.)

Trees located in the public right-of way can be removed for a number of reasons, including the death of the tree, structural defects in the tree, and the declining health of the tree.  Before removing a live roadside tree, a removal request must be made to the Division of Highway Services and a removal permit must be approved by DNR.  The criteria for granting a live tree removal permit include the need to:

  1. eliminate a hazard to property, public safety, or heath;
  2. improve or prevent the deterioration of other trees; or
  3. improve the general aesthetic appearance of the right-of-way.

Dangerous Tree Conditions on Public Property

In order to hold a public entity — such as Montgomery County, the Maryland National-Capital Park and Planning Commission, or the State of Maryland — liable for an injury to a person or property resulting from a tree condition on public property or on the public right-of-way (for example, a tree falling on a car in traffic), the public entity must have been negligent.

To prove negligence, you would need to establish:

  1. that the tree located on the public property or public right-of-way was in a dangerous condition on the date of the injury;
  2. that the injury was caused by the dangerous condition;
  3. that the injury occurred in a way which was a reasonably foreseeable consequence of the dangerous condition; and
  4. that the injury was caused by a negligent act or failure to act by an employee of the public entity; or, that the public entity knew, or should have known, of the dangerous tree condition sufficiently in advance of the injury so that the public entity could have taken proper measures to correct the dangerous condition and prevent the injury.

Encroaching or Overhanging Trees from Neighboring Property

What if a tree overhangs the property line or tree roots from a tree on an adjoining property cause damage to your driveway, foundation wall, or water line?  For the most part, in Maryland, harm caused by encroaching branches and roots is not actionable and self-help is your exclusive remedy.  The remedy of “self-help” means that you have the right to cut encroaching branches, roots, and other growth to the property line, but you may not enter the adjoining property to cut down the tree or cut back growth without the adjoining property owner’s consent.

A further limitation is that the self-help must be exercised in a reasonable manner.  Thus, although you can remove branches and roots that cross the property line onto your property, you must take care not to uproot, unbalance, or otherwise cause irreparable harm to the tree on the neighboring property.

Responsibility for Fallen Trees or Tree Limbs (Private Trees)

Courts will look at a number of factors to determine the liability for fallen trees or limbs which originally grew on one property but fell onto another property.  These factors include whether the tree was planted by someone or occurred naturally; whether the tree was dead, decayed, or otherwise in such poor condition that the owner knew or should have known that the tree was dead or hazardous and, therefore, was on notice of a potential for the tree to fall; and whether some activity on the adjacent property, such as construction, caused the tree to fall.

In general, unless you can prove that your neighbor was negligent or had some notice of the danger, the incident will probably be considered an “Act of God” and you (or your insurance company) will be responsible for removing the neighbor’s fallen tree from your property and for any damage caused by the fallen tree.   ■


   © 2007 NFCCA  [Source: https://nfcca.org/news/nn200704i.html]