The severe storms that tore through the Madison area earlier this summer raised questions in some people's minds about climate change and the advent of more severe weather. Some residents were finally forced to admit that -- contrary to local urban mythology -- tornadoes can touch down on the isthmus. For other local homeowners, the storms renewed concerns about the safety of living in close proximity to a large urban forest.
Trees are grand and glorious life forms. They provide us with clean air, shade and shelter. They tend to increase property value. Yet it only takes one severe storm to remind you that an oak tree -- while extremely rigid and strong -- is not particularly aerodynamic. This summer, a stunning array of photographs showed the extent of damage to big trees in Madison, some ripped right out of the ground and tipped over onto nearby buildings and cars. Dave Walker, Parks and Forestry director for the city of Verona, says two crews of four people spent almost two weeks cleaning up the arboreal debris.
If the specter of uprooted trees makes you nervous, you're not alone. Bruce Allison, who holds a doctorate in urban forest management, has served as an expert witness in dozens of tree litigation cases. Disputes are common in our area, he says, and not only because storms often cause tree damage. Humans have "different levels of risk aversion," says Allison. While one homeowner may be perfectly comfortable living right next to a very old red oak tree, his neighbor may be losing sleep at night, wondering if it will topple onto her house.
While the law with regard to trees and property lines is not vague or ambiguous, Allison says, property owners sometimes misunderstand their legal rights and responsibilities. Much confusion arises from the fact that trees, even in their upright state, "don't respect property lines," he says.
Trees are often legally shared property, Allison notes, in the sense either that the trunk sits on a boundary line, or that its limbs stretch across. If the tree topples, a complex ownership issue has the potential to turn into a full-blown human drama.
So what are the basic contours of tree law, as it applies to private property?
First and foremost, homeowners need to understand that they don't have full rights to alter a tree unless it is completely on their property. With regard to shared trees (this includes limbs as well as trunks), the law states that private landowners can prune or trim the tree on their side of the boundary, as long as their actions don't do "unreasonable injury" to their neighbor's interests.
What does "unreasonable" mean? Well, cutting a small branch or two on your side of the boundary line is probably "reasonable" because there's little chance it will damage the tree or hugely change its appearance. But removing a large, bent limb -- even if that limb extends precariously over your children's bedroom -- might kill or weaken the tree substantially.
Even if the tree dies the following year purely by coincidence, your neighbor could allege that your aggressive pruning caused it to perish. So, better to negotiate the pruning with your neighbor in advance, Allison says, than let a judge making a subjective determination about civil damages after the fact.
Your neighbor has a say in the limbs hanging over your house, but he is also protected from liability when that limb falls. By law and insurance rules, a toppled tree is considered an act of God, or an unforeseen force of nature. If a strong wind comes along -- let's say after your neighbor has refused to remove that tree -- and upends it onto your house, the damage and injury are nonetheless considered God's doing, not your neighbor's. That is why your homeowners insurance and not your neighbor's will have to cover the cost of removing the tree and repairing your house.
Unless that same limb misses your house and falls into your backyard, says State Farm agent Clyde Olson. In which case there is no claim to file at all, even if removing the debris can be costly.
That doesn't mean your neighbor is absolved from all responsibility. Olson, who has more than 35 years of experience selling homeowners insurance, notes that there's a big difference between what the law requires and what a "decent neighbor" will do. If your tree falls on your neighbor's fence or trellis or bird feeder, you aren't obliged to clear it or pay for repairs. But if you want to maintain friendly relations with her (which might later serve your interests), you ought to help.
Then there's the case of a decaying or diseased tree. If your neighbor identifies a problem with a shared tree before it falls on her house, that tree is now a "known nuisance." Fail to prune or remove it, and you may later be found negligent.
In the case of damaged property, her insurance claim will be settled through subrogation, forcing your insurance to pay it. The problem with the "known nuisance" status, says Bruce Allison, is that decay is often hidden inside a tree and only discovered after a storm knocks it over. For that reason, he advises people who live underneath trees to consult tree specialists on a regular basis.
What if your neighbor is the city itself -- if you live next to a park, say? In many respects, municipalities are the best neighbors to have. Cities are basically governed by the same rules of law and insurance. But then, forestry staff in heavily wooded municipalities like Madison, Verona and Shorewood Hills also do proactive maintenance and tree care.
Following storms, urban forestry crews will remove their damaged trees from your property, as well as clear your trees from public space. The city also helps settle private matters, in the case of disease or hazards. Kyle Bunnow, a city of Madison housing inspection supervisor, says residents can report problems with a private tree. The city is interested in discovering trees that are diseased or pose an imminent hazard. And if the forestry department deems a tree to be a hazard, the city can order it to be removed.
While urban foresters help out where they can, private homeowners frequently overestimate the scope of what the city can do. Bunnow says his office receives more than 50 reports a year of tree cases that turn out to be completely private matters -- trees that aren't diseased or imminently hazardous, but that neighbors simply don't like. If a private tree isn't dangerous to people or other trees, the city won't involve itself in neighbor disputes.
Do homeowners have more to worry about with climate change bringing more severe storms?
There has been a regional rise in catastrophic events since 2000, and insurance premiums have been rising, though the cat loss load -- the amount of money insurers bankroll for natural disasters -- has also been adjusted. State Farm's Olson thinks that overall we've been lucky here, and we still have some of the lowest premiums in the country because of it.
If there are clear answers to the question of trees and severe weather, they're as follows: Check the health of your trees. Get homeowners insurance and keep it up to date. And also, keep in touch with your neighbors. You never know when you might need help getting your car -- or worse yet, your living room -- out from under their big oak tree.
