Trees – Liability, Damages & Remedies
From ancient times it has been a principle of law that the landowner has the exclusive right to the space above the surface of his property. To whomsoever the soil belongs, he also owns the sky to the depths. The owner of a piece of land owns everything above it and below it to an indefinite extent.[i]
Pennsylvania law relating to trees derives from the theory of trespass. Branches and roots which enter adjoining land are “trespasses” onto the land of another. Unique is that a showing of actual damage or monetary harm to neighboring land is not required before a remedy may be had. This means that the mere presence of branches and roots from a neighboring tree creates an actionable claim.
In addition to suits for money damages (for the cost to remove the encroachment) and equitable relief (compelling the tree owner to abate the trespass), Pennsylvania law specifically entitles the adjoining landowner to self-help. The landowner may thus cut roots and branches to the extent that they encroach. In doing so, they are not liable for damage caused to the tree. This was the holding in the 1993 Pennsylvania Superior Court case of Jones v. Wagner, which involved a claim for damages to trees which were cut by a neighboring property owner. While their neighbors were on vacation, Wagner trimmed the branches of 26 Hemlock trees to the extent that the branches hung over the boundary line. In response, Jones filed suit against Wagner seeking the replacement value of each of the 26 trees which adorn the property line, a combined figure of approximately $31,000 (1993 Dollars). In rejecting the damage claim, the Court wrote as follows:
… we conclude that Pennsylvania law affords a full panoply of remedies to a landowner whose property is encroached by overhanging branches or tree limbs. First, an aggrieved landowner is entitled to exercise a self-help remedy by either trimming or lopping off the branches to the extent his property is encroached. Second, if the landowner has incurred reasonable expenses in the course of exercising a self-help remedy, he may recoup those expenses from the trespasser. Third, he may, on a trespass theory, seek equitable relief compelling the trespassing neighbor to remove the trees to the extent of the encroachment and seek appropriate incidental and consequential damages. We emphasize that Pennsylvania law requires no showing of physical harm or damage to the land before a possessor of land can enforce his right to freely enjoy unencumbered and exclusive use of property he rightfully possesses. Since appellees in this case were only exercising their right to trim the branches and limbs of appellants’ encroaching trees, they may not be held liable in damages for doing so.
In 2003, the Pennsylvania Commonwealth Court was asked to determine if tree roots or branches could create an easement by prescription. In Koresko v. Farely[ii], the plaintiff sought injunctive relief to prevent a neighbor from installing a water line which required cutting the root system of trees located on plaintiff’s property. They argued that because the roots had encroached for more than 21 years, an easement by prescription (similar to adverse possession) was created – and that cutting of the roots would thus constitute an unreasonable interference with that easement. However, in the same way that the known presence of windows near a lot line does not create a prescriptive easement for light and air, the Commonwealth Court held that roots cannot create an easement by prescription. It thus follows that tree roots and branches create continuing trespasses as they grow – and that the duration of their presences is not relevant. The trespass may thus be abated at any time, regardless of how long the trees have been there.
Jones and Koresko apply generally, but not necessarily in the condominium or homeowners association context. The governing documents of condominium and homeowners associations routinely assign maintenance, repair, and replacement obligations irrespective of ownership. For example, it is not uncommon for associations to cut lawns and maintain landscaping on individual unit lots. To the extent these obligations encompass pruning and tree replacement by the association, unit owners may not be entitled to engage in self-help. Such work by a unit owner may indeed constitute a violation of the governing documents. Moreover, unit owners may only be entitled to a legal remedy (damages or injunctive relief) if the association’s obligation vis-à-vis the tree was breached – that is, if the association was negligent in performing (or failing to perform) appropriate work.
The law of negligence likewise applies to damage or injury caused by a falling tree or limb of a tree. In Barker v. Brown[iii], a 1975 case involving damage caused by a tree to two neighboring trees, the Pennsylvania Superior Court held that:
… a possessor of land in or adjacent to a developed or residential area is subject to liability for harm caused to others outside of the land by a defect in the condition of a tree thereon, if the exercise of reasonable care by the possessor
(a) would have disclosed the defect and the risk involved therein, and
(b) would have made it reasonably safe by repair or otherwise
The reasonable care standard encompasses, at least, a duty to make a visual inspection. Under some circumstances it may encompass more… If the possessor of land in or adjacent to a developed area knows, or should know, through inspection or otherwise, that a defect in one of his trees poses an unreasonable danger to others outside of the land, he is under a duty to eliminate that danger.
In other words, the mere occurrence of damages is not sufficient to impose liability. Responsibility for damages may thus be on the owner of the land where the damage occurred. However, negligence requires fact specific evaluation. In a case where a falling limb killed a motorist on the adjacent highway[iv], the US Court of Appeals for the Third Circuit established a duty for landowners to safeguard motorists on a public highway based upon the ancient maxim, “ ‘sic utere tuo ut alienum non laedas’ – so use your own [property] as not to injure another”, holding that “the owner of property abutting on a public highway is under a duty to keep it from being a source of danger to the public or to the travelers on such highway, to the extent that reasonable care on his part can guard against.” This result is consistent with the February 25, 2025, opinion by the Pennsylvania Superior Court in Harris v. Felouzis[v], which (in another case where a tree struck a motor vehicle) confirmed that whether the tree was in a dangerous condition and that a reasonable landowner should have foreseen and, thus, should have rectified that danger is a factual question for the jury.
The exercise of ordinary care would suggest regular maintenance and routine inspections of trees (by the tree owner), especially in urban and development settings. In a community or condominium association, the obligation to undertake this function will generally be determined by the governing documents. As stated above, ownership and maintenance obligation may not coincide. Important to remember, is that disputes over trees are often disputes between neighbors. Whether within or outside of a planned community context, unilateral self-help invariably invites controversy. It is therefore recommended that residents approach their neighbors and their association boards to give notice of these issues, especially before resorting to take matters into their own hands.
[i] Jones v. Wagner, 425 Pa.Super. 102 (1993) The only exception to the ancient rule that a landowner owns his property “to the heavens” is in aviation, where a landowner cannot claim a trespass if aircraft flies above his land and does not substantially interfere with his use thereof.
[ii] Koresko v. Farley, 844 A.2d 607 (2004)
[iii] Barker v. Brown 340 A.2d 566 (1975)
[iv] Brandywine Hundred Realty Co., v. Cotillo, 55 F.2d 231 (1931)
[v] Harris v. Felouzis 2025 PA Super 30 (2025)
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.
