An Act Relative to the Protection of Trees from Interference by Abutting Property Owners
About H.1849
Massachusetts common law allows property owners to prune any roots and branches of their neighbors’ trees that are encroaching onto their property and causing a nuisance. While this is a common-sense alternative to litigation, the courts have expanded this rule to allow property owners to cut roots and branches of trees even when they are not causing a nuisance or property damage, without any standard of reasonableness, even if it kills the neighbor’s tree. Municipalities have implemented their own local bylaws in order to offer protections to trees, but developers frequently use waivers under Ch. 40B to circumvent these protections. H.1849 institutes a “reasonableness” standard that requires property owners, including developers, to act reasonably when cutting back roots and branches of trees that are encroaching on their property. Read more here.
Why H.1849 is important
Under current rules, developers can cut roots and branches of abutters’ trees that are in the way of their construction projects, even if the trees are not causing a nuisance and are not causing property damage, and even if the excavation and cutting results in the tree’s death. This is particularly problematic when a developer builds right up to the property line, potentially taking out 50% or more of a neighboring tree’s root system. The destruction of mature trees on property lines is particularly damaging in the case of large developments, as those trees could otherwise serve to screen the abutter from the project. H.1849 recognizes that trees are important natural resources that should be valued, especially when a development could adversely affect neighboring properties.
Diagram of a Typical Root System (Matheny and Clark, Trees and Development, p. 17)
How h.1849 would work
H.1849 would implement three new principles to the existing tree statutes:
A tree that straddles a property boundary at its trunk is presumed to be jointly owned by the owners of the property on which the trunk is located (already common law), and said owners shall act reasonably with one another in the cutting, pruning and trimming of the tree and its parts.
Any excavation occurring so close to a property line that it is within the applicable zoning setback will be presumed to be unreasonable when the excavation damages or is likely to damage the tree, regardless of any waivers the developer has been granted.
Property owners who act reasonably when cutting or pruning a tree will be relieved of liability for monetary damages.
A reasonableness law already exists in states like New York, California, and Ohio.