Guest Post By George Nowack

As “close-in” land becomes non-existent, “new” land is “created” by demolishing estates and replacing one home with numerous structures. Cluster homes, townhomes, and zero lot line homes are the most popular form of dense development.

An important component of this type of development is the use of landscaping to achieve a sense of privacy, despite the close proximity of neighbors. That is achieved by over planting trees and bushes which leave little room for plant growth. An unintended consequence of this type of landscaping is the problem which limbs, trunks, and roots will cause to adjoining lots and structures as the plantings grow.

Tree limbs and roots cause problems both above and below the grounds’ surface. Limbs overhang fences and homes shading neighbor’s property and creating additional maintenance for a neighbor where limbs fall and leaves clog gutters. Roots can kill other plantings and invade and clog underground pipes.

Those problems inevitably lead to disputes between neighbors and raise the question of the legal rights of both property owners.

Unlike most other states that hold a boundary tree is owned as tenants-in-common, Georgia law holds that each adjoining landowner upon whose land any part of the trunk stands has an interest in the tree. It is a property interest, like a party wall, in which landowner actually owns the part of the tree located on their property and has an easement of support from the other. Each landowner has the right to demand the other use his part as not to unreasonably injure or destroy the whole.

A landowner is not liable for injuries or damage caused by a falling tree or limb only if he knew or reasonably should have known the tree was diseased, decayed, or otherwise constituted dangerous condition. Generally, there is no duty to consistently and constantly check all trees for non-visible rot. Liability ensues only when the decay or other problem is visible, apparent, and patent.

Courts have been reluctant to get involved in disputes between neighbors over landscaping. As a result, it is the general rule that a property owner has the right to invoke self-help remedies of cutting off the intruding limbs and roots up to the property line. The remedy must be exercised in a reasonable manner to minimize damage to the tree or bush. If the action is reasonable, a landowner is usually not liable if the tree then dies.

Tree roots can clog water and sewer lines and damage foundations. Self-help terminates the cause of the damage but the damaged owner wants compensation for the damages for increased costs of maintenance. Again, Courts are reluctant to award such damages and will only do so when the owner has failed to reasonably maintain the tree or bush. Damages have been awarded when one landowner totally ignored a neighbor’s complaints about tree roots; other cases have awarded damages where a tree owner only minimally maintained the roots.

A new problem caused by over landscaping that will effect landowners is the shade created as trees and bushes grow. The law is clear a landowner has no claim to benefit of shade cast by a neighbor’s tree, and likewise has no claim for damages the shade causes by killing grass or preventing other growth.

In conclusion landowners have the right to enjoy their property according to their tastes and wishes including the planting of landscaping. Adjacent landowners have the same rights and can contain landscaping encroachments by trimming bushes, trees and roots along the property line. Unless a landowner acts negligently by failing to inspect or intentionally damaging property a landowner has no liability for damages caused to an adjoining owner or an adjoining owner’s property.