Conflicts due to bad tree mantaince

Do you have a private garden? Take care of it relaxes and occupies your mind. Today, we'll deal with the consequences of a bad trees maintainance. We'll analyze the topic with a proactive approach.

Preliminary questions:

When can't be troubles?

When you live in a totally isolated, single-family home.

When, in spite of the existence of another owner, the tree is not tall enough to go beyond the limits of the garden and when it is not planted on the border line between the two properties. In both cases the key factor is that the tree must be entirely on our property. Article 33 of the Spanish Constitution guarantees private property. 

1.2. When can it affect others to have a tree in your garden?

When the tree is tall enough to overcome the wall or fence that separates the adjoining gardens of two owners and its branches fall into the garden of others or its roots penetrate it. 

 The conflict is limited to the case in which the growth of the tree affects another owner in an irrefutable and direct way. The fact that it is required a direct damage differentiates it from other problems such as excessive noise, situation in where our action harms others, without us being near. 

2. Let's now look at liability for damage caused by a tree (or part of it) on someone else's property:

2.1. Trees belonging to one owner fall on an adjacent property and damage or destroy it.

Responsible for the damage: the owner of the tree in the situation that the lack of maintenance was decisive for the damage to happen. Think about: insufficient pruning, too long branches or roots that were not kept at bay.

Solution: the legislator always prioritizes to avoid conflict. Therefore, before making a complaint to the Property Manager or denouncing the conduct that harms you, you must notify the owner of the tree of the objective and lasting damage caused by his/her conduct. The communication of the damage seeks to give the opportunity to repair the damage. If after the communication the owner fixes it perfectly. If, on the other hand, he persists in his/her malicious behavior (with bad faith), the tree can be pruned.

2.2. When the tree is in perfect maintenance, an electrical storm has occurred and the weather phenomenon has damaged a branch.

Responsible for the damage: an unpredictable weather phenomenon. Therefore, the owner of the tree cannot be accused of anything.

Solution: We will have to see if the home insurance you have hired covers "major storms". In general, a big storm is considered to be one that exceeds 100l/m2 of rainfall and 100km/hour of wind, although insurance companies cover damage from 40l/m2.

2.3. A branch is weak before the storm and the owner, after being warned, does not carry out the appropriate maintenance work.

Responsible for the damage: the owner of the tree for "failure to maintain". In this case, something has changed with respect to the previous case: although the storm remains unpredictable, action could have been taken to avoid the fatal outcome.

Solution: experts and lawyers must come into play as this case is a matter of appreciation.

2.4. If the tree was well maintained and a storm causes a branch to fall on a neighbour's roof

Responsible for the damage: nobody, unlike the previous case, good maintenance can be accredited. 

Solution: always take out home insurance and know what it will cover.

2.5. If a tree grows so much that its roots pull out a fence

Responsible for the damage: its owner, since a tree cannot take care of itself. Furthermore, it would be considered an invasion of the adjacent property. In that instance, it would be required to be removed.

2.6. A bordering tree should not be removed unless by mutual agreement.

Responsible for the damage: there is no damage per se and no liability for the conduct.

Solution: consensus between the parties. 

2.7 Leaves, pods or acorns that fall on land adjacent to the tree property.

Responsible for the damage: the owner of the property, land, plot or garden on which they fall. As this is a natural occurrence, the owner of the tree cannot be held responsible. 

Solution: the owner of the adjacent land collects leaves, pods or acorns.

2.8 In the case of trees, located in Communities of Owners, threaten to fall on the public highway or on private property, what responsibilities and obligations does the Community have?

Responsible for the damage: the property of the tree that threatens the public road (except in the case of force majeure).

Solution: to uproot the tree either by its own will or forced by the judicial authority.

This is established by the Civil Code in the following articles:

 Article 390 of the Civil Code:

'When any corpulent tree threatens to fall in such a way that it may cause damage to a property that is not owned by passers-by on a public or private road, the owner of the tree is obliged to uproot it and remove it; and if he does not verify this, it shall be done at his expense by order of the Authority'.

Article 1908 CC: 'The owners shall also be liable for damages caused by: 1) Falling trees placed in transit sites, when this is not caused by force majeure.'

3. Special cases

3.1. The law guarantees: that a landowner prunes branches and cuts roots that deviate towards his property. But, beware, an owner who prunes an invasive tree belonging to another can only do so up to the dividing line and, if the action is not sufficient, must ask permission to enter the property of the tree owner. 

3.2 It is illegal to: cut down the entire tree, to destroy its structural integrity or the attractiveness and aesthetic symmetry of the tree by pruning it improperly.

Now when you know what you can it is time to choose the tree you want for your garden.