A common question asked of our lawyers in Charleston is whether a person has the right to cut a neighbor’s tree branches that hang over their property line. Although this question seems simple, the answer isn’t because South Carolina has no law that authorizes you to cut your neighbor’s overhanging tree limbs. However, there are statutes that may subject you to criminal penalties depending on the circumstances if you cut your neighbor’s trees or branches. This article explains some of the laws on this issue in South Carolina and some tips on dealing with overhanging tree branches and fallen trees.
In South Carolina, may I cut my neighbor’s overhanging tree branches?
Recently, an incident regarding tree trimming made the local news in Charleston, South Carolina. In a West Ashley neighborhood, a landowner hired a landscape architect. Some persons in this neighborhood described the tree-trimming job as “shocking,” “a butchering” and “absolutely hideous” because the long limbs of 3 large oaks were chopped off in a straight line close to the tree trunks. Additionally, the architect faced the possibility of criminal charges for allegations that he injured the trees. In South Carolina, the criminal statute, Section 16-11-520 provides:
(A) It is unlawful for a person to wilfully and maliciously cut, mutilate, deface, or otherwise injure a tree, house, outside fence, or fixture of another or commit any other trespass upon real property of another.
(B) A person who violates the provisions of this section is guilty of a:
(1) felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than ten years, or both, if the injury to the property or the property loss is worth ten thousand dollars or more;
(2) felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years, or both, if the injury to the property or the property loss is worth more than two thousand dollars but less than ten thousand dollars;
(3) misdemeanor triable in magistrates court or municipal court . . . if the injury to the property or the property loss is worth two thousand dollars or less. Upon conviction, the person must be fined not more than one thousand dollars, or imprisoned not more than thirty days, or both.
If you cut your neighbor’s tree limbs to protect your own property, then your actions may not be “malicious.” However, cutting the limbs may still be enough to face a criminal charge. If a person is convicted of violating this statute, and the property loss to the neighbor is over $2,000, then it is a felony instead of a misdemeanor.
Depending on the circumstances, there’s another statute that deals with cutting trees. Section 16-11-680 provides:
If any person shall knowingly, wilfully, maliciously or fraudulently cut, fell, alter or remove any certain boundary tree or other allowed landmark, such person so offending shall be guilty of a misdemeanor and, upon conviction, shall be fined not exceeding one hundred dollars or imprisoned not exceeding thirty days.
In South Carolina, what happens if my neighbor’s tree falls and causes injury or property damage?
If your neighbor’s tree is on rural property, then your neighbor most likely gets a free pass. If the tree is on urban or residential property, then your neighbor has a legal obligation to prevent risks from unsound trees. This doesn’t mean that your neighbor is always responsible for his or her trees. If a branch falls and harms a person or property, you still have to prove he or she was “negligent.”
You can prove negligence by showing your neighbor “knew or should have known” the tree created an unreasonable risk, and that risk caused the injury or damage. For example, if your neighbor’s tree had noticeable disease or decay, was uprooting, or frequently lost limbs, then your neighbor probably knew or should have know there were problems with the tree. Even the Department of Transportation (SCDOT) could be liable if a tree or a branch causes injury on a public road.
If the tree is perfectly healthy, but a lightning strike causes the branch to fall, then the neighbor probably isn’t liable for any property damage or injury. In legal jargon, your neighbor could raise what we call in South Carolina the “Act of God” defense regarding the lightening strike.
What should I do if my neighbor’s trees are a problem?
Before you take any action, we recommend you consider fully assessing the situation by doing the following:
- Confirm your boundary lines. You may be fairly certain where your property’s boundary lines lie, but it’s best to check. The most accurate way to confirm your boundary lines is to hire a surveyor or reviewing a plat or survey you already had performed on your land.
- Communicate with your neighbor. Cutting your neighbor’s trees without first asking is neither neighborly or legally sound. Try to work with your neighbor to come up with a plan to address any problems. If your neighbor won’t work with you, then send your neighbor a letter to put him or her on notice that the tree is a problem. This way, if the tree causes damage later, you can help prove your negligence case by showing the neighbor was on notice of the problem. Make sure to describe the tree characteristics that indicate the problem.
- Consult with an arborist. An “arborist” is essentially a tree doctor. The arborist can inspect the tree and tell you whether it’s a hazard and in danger of falling or dropping heavy branches. If the tree isn’t a hazard, then you shouldn’t trim it without the owner’s permission. If it’s a hazard, contact your neighbor and give them the arborist’s report. Politely ask your neighbor to trim or remove the tree. Although your neighbor may disagree, with the arborist’s report you may be able to convince a judge to order your neighbor to deal with the tree. If you choose to wait and see what happens, by placing your neighbor on notice that the tree presents a hazard, you will be better able to prove your neighbor was negligent if the tree damages your property or a person on your property.
- Consult with a professional tree pruning/removal service. If you hire a professional tree pruning service to remove problem limbs overhanging your property, make sure the service is in insured and that the service agrees to indemnify you for any claims for damage to the tree. Indemnification means that the service will compensate you for any loss or damage if your neighbor sues you. Also, educate yourself as to how the service will prune the tree to preserve it. For example, “heading cuts” can potentially kill a tree whereas a “lion’s tail” merely thins the tree limbs.
- Consult with your local authorities. Certain trees can’t even be cut without a permit. For example, the City of Charleston’s detailed tree ordinance classifies various types of trees, such as a “grand tree,” which is twenty-four inches (24”) in diameter at its “diameter breast height” (DBH) or a “protected tree,” with a DBH of over eight inches (8”). While Charleston does not currently prohibit the pruning of these trees, if you don’t know what you are doing, you could accidentally kill the tree and violate the law. Other places may have ordinances that do prohibit pruning of certain trees, and you need to know your local laws before cutting.
What should I do if my neighbor won’t cooperate to trim or cut trees?
- The risk of cutting the limbs yourself. South Carolina hasn’t defined a property owner’s “air rights” regarding vertical property lines. Many other states, however, have adopted a rule that allows a “self-help remedy” of cutting tree limbs that come over your vertical boundary line is acceptable, even when the trees don’t present an immediate hazard. If you don’t mind taking the chance of winning or losing this issue in court, you might go this route. Another advantage to this option is that in many cases, even if you lose, the neighbor’s monetary damages to recover from you could be relatively low (perhaps limited to the cost of replacing the tree, so long as your pruning didn’t cause other damage). However, you should know that the law is unclear, and you could be sued for damages by your neighbor.
- File a lawsuit. You can bring a lawsuit asking for several things, including having the court order the neighbor to cut the tree or branches down, giving you permission to cut the tree or branches yourself, and awarding you the costs of doing any pruning yourself. The primary claims to be made in a case like this are called “trespass,” “nuisance,” and certain types of “equitable relief.”
- Do nothing. If the arborist assured you that the tree is not an immediate threat, you may decide the uncertainty of the legal battle is not worth it.
Until South Carolina clarifies the law regarding the removal of your neighbor’s tree limbs, there is no simple answer as to whether it’s OK. So, educated yourself about the tree, consider all factors including the desire to have peace with your neighbor, select the path that you believe will work best for your situation, and proceed with caution.