Thursday, July 9, 2015

Neighbors: The Root of All Evil?

Alvarez v. Katz, 2015 VT 86

By Thomas M. Kester

This case boils down to a tree—but not just any tree—a sixty-five-year-old maple tree located on the Alvarez property. Berger and Katz  want to do some construction but the construction will require cutting into half of the tree’s roots. Alvarez is all like, “Hey man, save the trees” while Katz is like, “Tttimmmbbbeeerrrrr.” 

At any rate, let’s get to the "root" of the case.

Katz and Alvarez are neighbors in South Burlington in the Shelburne Bay area. So, the entire tree sits on Alvarez’s property but the trunk is about two feet from Katz and Berger’s property. The tree decided that “the grass was greener” on the Katz and Berger side and half of its branches and roots grew over (and under) the property line. Dumb move for the tree because Katz and Berger now want to expand their house and the expansion will require cutting into the roots.

While Katz and Berger were sharpening their chainsaws, Alvarez sought and was granted a temporary injunction and later a permanent injunction, based on the superior court finding “it more likely than not that removal of 50% of the tree’s roots and branches as contemplated would result in the premature death of the tree, perhaps within five years and probably within ten from the time of cutting.” Much like a squirrel reaching for the elusive nuts from their winter cache in a tree’s trunk, the superior court pulled out the “urban-tree rule” to justify the ruling. Now, because you sophisticated urban folk already know this rule, allow me to explain it for the rest of y’all: a neighbor may be prohibited from “trimming the roots or branches of an encroaching tree . . . if the trimming will destroy the tree.” Apparently big, fancy states like California, New York, and New Jersey have used this rule, but that’s about it.

The SCOV starts off by “reaffirm[ing] Vermont’s long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree,” pointing to a 1916 case we'll call "Cobb," which holds (and I am liberally paraphrasing) “cut and hack stuff on your property to your heart’s delight.”

The SCOV goes on to state how the superior court’s belief that “this case is one of first impression” isn’t quite right and that it should have looked to Cobb. Next, the SCOV notes the legislature did not modify the Cobb holding with legislation. Not only that, but “the Cobb rule enjoys extremely widespread support” (like a redwood’s root system) and the “urban-tree rule” has miniscule acceptance (like marketing maple syrup as an all-natural energy drink). 

The final part of the SCOV’s analysis involves that thing they taught me in law school called the common law. There are these things called “nuisance” and “trespass”  in the common law, but because they are not directly before the court they won’t get analyzed (nor do we get into whether or not Alvarez should be compensated for the tree’s woody demise). Instead, the High Court states that even with the common law “jurisdictions continue to recognize the right to self-help.” Lastly, the SCOV, akin to Lewis Carroll, sees the formidable rabbit hole: “the obvious next question would to what extent the encroached-upon property owner must suffer such an encroachment” before a court could make the “urban-tree rule” a workable option. The proverbial cherry on top is that Alvarez “must either remove the offending branches and roots or compensate Berger and Katz for doing so.”

Landowners and the rights that come with land (that notorious “bundle of sticks” I’ve heard about) outpace the right of neighbors to interfere. How ironic would it be if that maple tree ultimately ended up being a stack of property-law textbooks?

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