It is not exactly George Washington cutting down a cherry tree, there is no issue of telling a lie, and it is not “a Federal case” but cutting your neighbor’s tree roots can still prompt a lawsuit with multiple appeals!

Clearing out drafts of new decision reviews, but never posted, this conveys a review concering one of the last Florida appellate decisions of 2018. On the final day of the year, the First District Court of Appeal reaffirmed the duty, or lack thereof, of a land owner for landscaping encroaching on a neighbor’s property. Balzer v. Ryan Case No. 1D18-3182 (Fla. 1st DCA December 31, 2018).

In this “second tier certiorari proceeding,” a county court was the trial court, and the first appellate stop was a circuit court. Balzer, the trial court plaintiff, petitioned for a second level, or second tier, of appeal, to the First District Court of Appeal.

Balzer’s property bordered Ryan’s property. Balzer asserted that the Ryan’s contractor cut the roots of Balzer’s tree. Apparently, Balzer’s tree roots crossed Balzer’s lot’s boundary line into Ryan’s lot. Ryan removed the roots because the roots damaged Ryan’s sewer line. Though cutting the roots did not kill the tree, Balzer asserted that the root cutting undermined his tree’s structural intergrity and increased the risk that the tree could fall on Balzer’s house; thus, Balzer then had the tree removed.

The county/trial court entered judgment for Balzer, but only for a portion of her expenses. Both parties appealed to the circuit court which reversed the judgment and remanded for a dismissal with prejudice of the Balzer’s claims.

Substantively, the District Court of Appeal restated Florida’s common law on landscaping that crosses a boundary line:

Under Florida law, it is well-established that an owner of a healthy tree is not liable to an adjoining property owner for damage caused by encroaching tree branches or roots, but the adjoining property owner “is privileged to trim back, at [his] own expense, any encroaching tree roots or branches . . . which has grown onto his property.” Gallo v. Heller, 512 So. 2d 215, 216 (Fla. 3d DCA 1987); see also Scott v. McCarty, 41 So. 3d 989 (Fla. 4th DCA 2010) (noting that Gallo reflects the predominate view around the country) (citing Encroachment of Trees, Shrubbery, or Other Vegetation Across Boundary Line, 65 A.L.R. 4th 603 (1988)).

This holding is based in practically, it is more efficient for a property owner to cut encroaching landscaping rather than forcing that owner to first obtain a judicial order, citing Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490, 491 (1931). In other words:

it was wiser to leave the individual to protect himself than to subject the other to the annoyance of actions at law which would likely be innumerable.

Scott v. McCarty, 41 So. 3d 989 (Fla. 4th DCA, 2010).

On the issue of whether the alleged damage resulting from the neighbor’s self-help is actionable, the significance of the appeal being second tier appeal became apparent. Second-tier certiorari review is “extremely limited” to whether the first-tier appeal decision violated established law. Reviewing precedent, the First District Court of Appeal found no controlling precedent; thus, the circuit court’s first-tier decision finding no liability would stand. In so holding, the Court noted that the issue of whether self-help must be exercised reasonably has resulted in conflicting decisions around the country.

The First District Court distinguished decisions awarding damages occurring within a foreseeable zone of injury, most notably McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992). The Court reasoned that the lack of a duty was not because of an absence of a zone of foreseeability, but instead because Ryan “undisputedly had a right to cut, and a rule imposing liability for causing any damage to the tree in these circumstances would effectively eviscerate that right.” (Footnote omitted).

In conclusion, the District Court held that the circuit court in its first=tier appellate capacity did not violate controlling precedent; thus, the petition for writ of certiorari was denied.

Interestingly, though the decision invokes the language of “privilege” the Court, again perhaps because of the second-tier review, may have felt constrained from carving a duty constrained by a “privilege” in concept similar to the qualified privilege found in the tort of defamation. Without engaging in crystal-balling the future, a reader could anticipate a decision on first tier review resulting in a qualified privilege, allowing a presumption of no liability which then could be overcome by a claimant’s proof of bad faith or unreasonableness.

Thus, it may be premature to counsel neighbors to run willy-nilly with chain saws to their property line. While the District Court of Appeal affirms the “right to cut” in language that could be seen as absolute, the second-tier review leaves open whether cutting must be reasonable. Thus, a property owner suffering an encroachment may be well served by addressing encroachments with reasonable care, especially if the cutting is anticipated to endanger a neighbor’s landscaping. Particularly if there is not an emergency an owner likely would be counseled not only as to legal duties, but also practical implications including the usual desire to avoid a dispute, whether it makes sense to first notify the neighbor that encroaches and provide that neighbor a reasonable opportunity to remove the encroachment.

Landscaping within with the boundary of a Florida 0community association may lead to a different result. Why? In many communities, lot use, and frequently specifically landscaping, is subject to numerous maintenance covenant and statutory duties which would supersede the common law precedent cited in Balzer. Covenants and statutes also contain dispute resolution processes.

Michael J. Gelfand
Past Chair
Real Property, Probate and Trust Law Section of The Florida Bar
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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section
© 2019 Michael J. Gelfand

Michael J. Gelfand
Florida Bar Board Certified Real Estate Attorney
Florida Supreme Court Certified Mediator: Civil Circuit Court & Civil County Court
Fellow, American College of Real Estate Attorneys