Condo Media - February 2024 - 33

The association is not liable for damages
unless there is negligence, which
generally requires a showing that the
responsible party did or did not do
something and the action (or inaction)
caused damage to occur.
In the case of trees, that showing
depends in large part on the health of
the tree itself. If the tree was healthy
and fell, there is no negligence and,
therefore, no liability. If the tree, or tree
limb, was diseased and/or deteriorated,
there may be negligence and liability.
As part of disaster planning, associations
should routinely review
the landscaping and health of trees in
their community. Walking around the
property periodically is one way to
survey whether trees have grown too
close to buildings or electrical wiring
and whether there are limbs that appear
to be damaged or diseased. Regularly
pruning trees and limbs can prevent
damage from occurring during storms
and can protect associations from
liability if damage does occur.
Sometimes it is difficult to determine
whether a specific tree needs to be
removed or is damaged. If there is
uncertainty, boards should utilize the
services of an arborist. Likewise, having
a report from an arborist regarding the
overall health of trees in the community
may also help defend against any claims
that the association had negligently
maintained its grounds.
SCENARIO 2: A TREE LIMB
HANGS OVER AN ABUTTER'S
PROPERTY, DROPPING
LEAVES AND BRANCHES
AND DRIPPING SAP.
It is not just residents who may suffer
damage or bring a claim against the
association for damage from falling
debris. Sometimes abutting property
may be damaged as well. And unfortunately,
damage due to overhanging trees
and limbs has been the source of many
disputes between neighbors.
This was the case for Helen Ponte,
a plaintiff in Helen M. Ponte, et al. v.
Joseph Dasilva, 388 Mass. 1008 (1983),
when she filed suit against an abutter
after the abutter's willow tree (which
hung over her land and driveway for
years) caused her consternation over
clogged gutters, a clogged swimming
pool filter, sap on her car, sticks and
leaves on her driveway, and ultimately
caused her to fall and injure herself.
In this Massachusetts Supreme
Judicial Court case, the Court ruled
against Ponte, stating that an owner
of a heathy tree has no duty to prevent
leaves or other debris from blowing or
dropping onto another's property and
that could not be a basis for negligence
or nuisance.
l What can an abutter do when
limbs hang over their property?
Massachusetts law provides a straightforward,
good New Englander remedy:
chop it off. In one of the few self-help
remedies for abutters, the law grants an
abutter the right to cut a hanging tree
limb back to the lot line. How the other
owner reacts is a different story, so we
still suggest asking first.
SCENARIO 3: ROOTS FROM
A TREE GROW OVER THE
BOUNDARY LINE AND DAMAGE
PIPING AND CEMENT.
Sometimes damage from trees occurs
over time and is not connected to a
storm event. As with overhanging limbs,
the law permits an owner to cut roots
growing in the soil on his or her property
from an abutter's property.
This holding stems from another
Massachusetts Supreme Judicial Court
case, Michalson, et al. v. Nutting, 275
Mass. 232 (1931), in which the Court
opted to follow the " common sense of
the common law, " recognizing it was
wiser to leave the individual to protect
themselves in a reasonable way, rather
than having neighbors constantly
suing each other for damage.
Accordingly, the Court found it is permissible
for an abutter to cut roots from
trees that encroach over a property line.
But just because you can does not mean
you should in every case. Before acting,
associations should review whether the
encroachment is likely to cause damage
or not. Likewise, if the assessment
is that the encroachment could cause
damage, approaching the abutter before
acting is recommended.
l Limited self-help is different
than trespassing.
As the above scenarios indicate, the
law does permit landowners the ability
to protect their property from falling
debris or encroachments.
But the law does not permit an abutter
the right to trespass on another's
property. This is true even if an abutter's
tree is damaged and may pose
a threat to property. The law does
not allow an individual to enter onto
another's land without permission and
remove a tree. In fact, doing so, pursuant
to MGL c. 242, Section 7, can result
in damages of three times the value of
the tree. While being proactive in preventing
damage is recommended, if the
tree is located solely on someone else's
property, demand of the abutter to take
the required action should be made.
In these instances, we always recommend
being reasonable, which may
mean sharing in the expense of
removal to avoid a dispute.
n MARK S. EINHORN, ESQ., IS A
PARTNER IN THE LAW FIRM MARCUS,
ERRICO, EMMER & BROOKS, P.C.
February 2024 CONDOMEDIA 33
Condo Media - February 2024

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