When Your Neighbor’s Trees are on Your Property
by Stuart Lieberman

Do you know where your property line is located? If your property was surveyed correctly and you have markers in the ground, you probably know.

But if you don’t have the property lines marked — how do you really know?

If your neighbor has a fence, don’t assume that the fence is on the property line. It may be on the line. It may also be a few inches into your neighbor’s property.

Or your neighbor’s fence may be partially or entirely located on your property.

The same applies to trees and landscaping at the end of your property. What if they are on your neighbor’s property, but have grown onto your property? What if the tree that you thought was on your neighbor’s property, is half on your property and half on his or her property? And what if is diseased, or needs pruning, or needs to be cut back?

These issues re-occur all of the time. Property lines exist on maps, not in real life. So people often make innocent mistakes in placing landscaping and fencing. These overlaps are called encroachments.

What should you do about the encroachment? First and foremost, you generally should take some action.

In some states, the neighbor can actually secure real title to your property if he can prove you knew about the overlap for a specified period of time (often around 21 years) and took no action. A neighbor’s successor (the next owner) may also have this legal right.

So at a minimum, you may need to take some kind of action to demonstrate that you are not foregoing ownership and that your kind attitude should not be confused with acquiescence or not caring.

Very often, there are cooperative ways of addressing these issues. For example, in the case of tree encroachments, you may not have to cut or move the tree.

Trees are usually good things and cooperative arrangements can be simply made to secure the well being of the tree. This includes maintaining the tree and pruning, etc. It’s a kind of tree joint custody arrangement.

The same applies to fencing and to areas of over pavement. While the ownership problem must be acknowledged, and while the parties should agree on actual ownership, the resolution does not have to be destructive.

In certain instances, when appropriate, an easement can be prepared which allows one neighbor to continue to use and benefit from the encroached property. Sometimes money is exchanged for the easement (perhaps enough for taxes, maintenance and insurance).

In certain instances, lot lines can be changed to eliminate the problem altogether.

This is an area where you should consult with a local lawyer, one that understands property law in your state.

Often solutions are easy and inexpensive. Sometimes they are more involved.

Almost always, a peaceful solution is available that does not have to be destructive. And it does not have to turn a good neighbor relationship into something less than desirable.

However, where amicable solutions are not apparent, courts will entertain and resolve these issues. From a personal standpoint, I believe that neighbor to neighbor court disputes should always be avoided.

But if that is not feasible, courts will provide finality in these areas.

Stuart Lieberman, Esq. writes about environmental issues. He was a New Jersey Deputy Attorney General assigned to the State Department of Environmental Protection from 1986 - 1990. Currently he is a shareholder in the environment law firm of Lieberman & Blecher, P.C., located in Princeton, New Jersey. He can be reached at slieberman@liebermanblecher.com.