Trees that encroach on your property can pose a serious harm to your property and safety, so it’s important to understand your rights as a homeowner regarding ownership of trees on a boundary or that encroach onto a neighbor’s land, the right to remove/cut down a tree, and the rights of neighbors to cut back/prune encroaching tree branches and roots. While Colorado has no clear rule on neighbors’ rights to cut or remove tree branches or roots that encroach on their property, most states allow a neighbor to remove encroaching vegetation through “self-help.” Hence, Colorado may follow this majority rule, but it is currently unclear. 

As a homeowner, what should I do when I think a neighbor’s tree is a problem?

Encroaching trees can pose a serious threat to your property and safety, so initially, it may be easy to get upset. However, because your rights are not well established in Colorado, it is VITALLY important that you do not act impulsively. Hopefully you have a good (relatively) relationship with your neighbor. If this is the case, just go talk with them. Maybe even bring them a pie or something. This should be an amicable process, because at the end of the day, it’s just a tree. Explain why you feel the tree needs to be trimmed or removed and ask what the neighbor thinks about the situation. 

What if my neighbor seems closed off to the idea of trimming the tree?

Again, do not panic, and definitely don’t tell them that you are going to do whatever you want with the tree. That would probably feel awesome, but the feeling of joy would quickly turn kaput because your relationship is now strained. Give your neighbor a couple of days to rethink, and then revisit them. Maybe, this time actually follow the pie baking directions, or figure out what pie your neighbor likes… remember, keep your eye on the prize; sacrifice some short-term pride for long-term safety. 

My neighbor still won’t budge!

At this point, if your neighbor simply will not budge, call us. We will help you draft a letter explaining the neighbor’s liability and your legal options if they continue being stubborn. If the letter doesn’t work, we will send another; and if that one doesn’t work, we will initiate litigation. We will determine if the tree is a boundary tree or an encroaching tree and establish the best strategy to put your obstinate neighbor in their place. 

Be a good neighbor.

This should go without saying, but if you are the neighbor with the problem tree, figure out a way to make it work. Don’t be difficult. You will likely be living next to this person for the foreseeable future and creating a situation over a tree is just…awkward. No one wants to live next to an awkward neighbor. 

What rights does a neighbor have to cut or remove tree branches or roots that have encroached onto their property? 

The law recognizes two types of trees, (1) encroaching trees and (2) boundary trees. Encroaching trees are those that are squarely on one party’s lot but that encroach onto another’s lot. In contrast, a boundary tree is one that sits on the boundary between the two lots. Here in Colorado, if anyone defaces, destroys, or removes a boundary tree, they may face criminal prosecution.

Colorado has no clear rule on neighbors’ rights to cut or remove tree branches or roots that encroach on their property. Most states allow a neighbor to remove encroaching vegetation through “self-help.” Self-help means the neighbor can remove the encroaching branches or roots themselves without having to petition the Courts for legal permission to do so. However, this only applies to encroaching trees. 

What legal remedies are available to homeowners whose trees are damaged by a neighbors’ actions in cutting or removing tree branches or roots that encroached onto the neighbors’ property?

There are three legal theories homeowners might benefit from: (1) trespass, (2) nuisance, and (3) negligence. 

Self-Help — Trespass and Nuisance 

When a neighbor cuts or removes tree branches or roots from an encroaching tree, it is known as “self-help.” Other states’ courts have examined the issue of self-help. Those cases have generally dealt with three questions. 

1. Can a landowner cut down encroaching roots or branches themselves? 

2. Can a landowner sue in court to get judicial permission to cut back the encroaching roots or branches? 

3. Can a landowner sue for trespass or nuisance and get damages? 

In one Colorado case, a party sued her neighbor because the neighbor’s tree was dropping broken branches onto her car, gutters, and yard, and causing damage. Because of this damage, she was forced to take her car to an auto body shop to get the dents fixed. The court held that an encroached upon party has, in addition to a right of self-help, the right to pursue a legal remedy under claims for trespass and nuisance. 

To establish a nuisance, four elements must be proven:

1. The condition complained of has a natural tendency to create danger and inflict injury upon person or property.

2. The danger created is a continuing one.

3. The use of the land is unreasonable or unlawful.

4. The existence of the nuisance is the proximate cause of the plaintiffs' injuries and damages.

To establish civil trespass, a plaintiff must prove the following:

1. The defendant intentionally caused a thing to enter land owned by the plaintiff or allowed a thing to remain on the property that they had a duty to remove.

2. The defendant's trespass was a substantial factor in causing the plaintiff harm.

If a party is able to show the elements of nuisance or trespass, they have a prima facie case for either nuisance or trespass, meaning they can sue on these claims.

Negligence 

Additionally, a neighbor owes another neighbor the duty of ordinary care and to act as a reasonable neighbor would in maintaining trees on their property so that it avoids damaging their neighbor’s property. Thus, a neighbor who is damaged by another’s tree can likely state a claim for negligence. 

A negligence claim has four elements. 

1. The defendant owed a duty to the plaintiff (i.e., to not cause their neighbor’s property damage).  

2. The defendant breached that duty. 

3. The plaintiff suffered damages or material harm.  

4. The breach was the cause of the plaintiff’s damage or material harm. 

If a party is able to show these elements, they have a prima facie case for negligence. In other words, if you can show that your neighbor’s tree unreasonably damaged your property, you can sue them for negligence. 

Navigating your rights when it comes to encroaching or boundary trees can get you stuck in the weeds. Colorado law isn’t well-defined on the subject, so it may be worthwhile to consult a professional regarding your specific situation to avoid the thicket of speculation. GLO has extensive experience guiding clients through property and homeownership disputes. If you need help avoiding a thorny situation, fill out an interest form today to see if GLO can help you.

GLO has prepared this blog to provide general information on legal issues that may be of interest. This blog does not provide legal advice for any specific situation and this does not create an attorney-client relationship between any reader and GLO or its attorneys. GLO engages clients only through specific fee arrangements and signed engagement letters. GLO does not guarantee any results.