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Personal Risk Management:
Your Trees...and Your Neighbor's

Each time a storm rips through a neighborhood, many people are surprised to learn that it is where the tree limb (or the whole tree) falls -- not where the tree is planted -- that determines whose homeowner's insurance is responsible for damage and cleanup. So, that neighbor's limb that hangs directly over your air conditioning unit, your roof; your outdoor furniture, your swimming pool filtration system, etc. is your problem if it falls...unless you do something about it first.

If the tree is diseased or dead, and you warn your neighbor in writing that the limb is likely to fall because it is weak, you might protect yourself against a costly claim. In most cases, your own insurance company would repair the damage, but the company then would "subrogate" against your neighbor's insurer, on the grounds that you warned about the hazard and the neighbor did nothing to abate it. That changes the episode from an "act of God" to an act of negligence.

If you live in Virginia, you might have a stronger negotiating position with your warning than you had before September 14. That was the day the Virginia Supreme Court overturned a 1939 law and opened the door for property owners to sue if a neighbor's tree -- healthy or not -- poses a risk of "actual harm" or "imminent" danger. The harm could be a falling limb or, as in the Fairfax County case the Supreme Court settled -- roots that buckle your patio. (Maryland and the District still go by laws similar to the old Virginia law.)

If you wish to consider a letter of warning, you might also think about first obtaining a proposal or two to have the limb removed, and offering to share the cost with your neighbor.

ABOUT THE AUTHOR

Reprinted with permission from the Fall 2007 issue of The CIMA Letter, the client publication of The CIMA Companies, Inc., an insurance and risk management firm with headquarters in Alexandria, Virginia.

riskVue | The webzine for risk management professionals
December 2007