Whose Responsibility is a Fallen Tree After a Hurricane?

As we are recovering from the effects of Hurricane Irma, there are many questions that seem to be common and reoccurring.  Florida Coastal Insurance Agency has teamed up with our property law friends at Yesner Law P.L. to answer some of these questions and develop a dialogue to assist those in our community.  Today’s topic is fallen trees.

To start, the idea of who owns the tree comes into play; imagine your property line goes to infinity up and down.  The simple answer is that the part of the tree on or over your property is your tree and you are responsible for that part of a tree.  In other words, it is not our neighbor’s responsibility to trim the parts of a healthy tree (roots or branches) on our property, even if the tree itself is on their property.  This gives us the right to trim these items on our property, (albeit at our expense). This is not the case if we are dealing with a dead tree.  At that point, the property owner whose property the tree resides on becomes responsible and as such, can be liable.

Therefore, whose responsibility is a fallen tree?  Often a tree that is substantially in one yard will fall into a neighbor’s yard during a storm.  This tree can cause damage to the neighboring property, the neighboring structure, and creates the expense of removing the tree.

Despite that most would agree that hurricanes are “Force Majeure” or “An Act of God,” the law in Florida is well-established, see, Rubin v. Appel, 194 So.2d 318 (Fla. 3d DCA 1967).  In that case, out of the Miami area, the Court held: “The fact that the damage was a result of a tropical storm is not an absolute defense. Where a force of nature combines with a condition created by the defendant’s negligence and produces injury, the defendant may be liable. … It is within the knowledge of all who have long resided in this area that we are occasionally subjected to winds of hurricane force, and that these winds have a tendency to topple trees, break limbs, and send unsecured object flying about. These storms are not beyond reasonable anticipation.” In other words, if you know your tree is damaged, unhealthy or unstable, the liability could shift to you regardless of where the tree lands.  The liability in such a scenario is akin to negligent behavior in failing to trim, remove or otherwise address a damaged or unhealthy tree.

Finally, check with your homeowner’s insurance carrier and make sure you review and are familiar with your policy(ies).

Although, generally, the starting point is that there is no liability for a fallen tree, our analysis is going to come under one of four categories:

• Your tree falls onto your property causing no damage. Most homeowner’s policies do not pay for the value of the tree from a wind loss or the cost to remove the tree if there is no damage to a covered structure.  (Some policies include additional language regarding coverage for removal if the tree blocks a driveway or handicap accessibility.)

• Your tree falls onto your property causing damage to a covered structure on your property. Most homeowner’s policies cover a fallen tree as a fallen object claim, this will be subject to the standard deductible on the policy, unless it happens during a windstorm or hurricane, where it would be subject to the wind/hail or hurricane deductible, typically a percentage of the home’s value.  From a fallen object claim, the insurance company will pay an amount for the value of the tree, an amount for the debris removal of the tree, and to fix damage to the covered structure, (the sub-limit coverage amounts will be listed in the policy and subject to deductibles).  During a windstorm, the value of the tree is typically no longer covered.

• Your tree falls on your neighbor’s property causing no damage.
  1. The same rules apply above in that most carriers will not cover the debris removal of a tree that does not cause damage to a covered structure. Therefore, you would be responsible for the cost of removal from your property and your neighbor would be responsible for the cost to remove the tree from theirs, assuming a healthy tree.
  2. If the tree is unhealthy, then your neighbor may have a claim against you, if the neighbor can prove that you knew the tree was unhealthy and failed to take precautions to trim or remove it prior to the storm.

• Your tree falls on your neighbor’s property causing damage to their property.
  1. Your policy will not pay for this damage and given the analysis above, you are not responsible to remove that part of the tree that has damaged your neighbor’s house; your neighbor would be subject to their policies’ coverage and deductibles, assuming the tree is healthy.
  2. If the tree is unhealthy, then your neighbor may have a claim against you, if the neighbor can prove that you knew the tree was unhealthy and failed to take precautions to trim or remove it prior to the storm.

If you have specific questions about fallen trees, property and casualty insurance, or property law, please reach out to one of us.

Richard Ficca is the owner of Florida Coastal Insurance Agency (a property & casualty insurance agency) and Advanced Risk Consultants (consulting firm for insurance related matters).  FCIA writes insurance statewide assisting policyholders with their Home, Auto, Flood, Motorcycle, Boat, Commercial Insurance, Workers Comp needs and more.  Richard loves the opportunity to speak with clients about their portfolio and often does speaking engagements for associations, civic clubs, business groups, and more.

Shawn M. Yesner, Esq., is the host of the Crushing Debt Podcast and founder of Yesner Law, P.L., a Tampa-based boutique real estate and consumer law firm that helps clients eliminate the financial bullies in their lives.  We assist clients with the sale and purchase of real property, asset protection, Chapter 7 liquidation, Chapter 13 reorganization, bankruptcy, foreclosure defense, debt settlement, landlord/tenant issues, short sales, and loan modifications in Tampa, Westchase, Odessa, Oldsmar, Palm Harbor, Clearwater, Pinellas Park, Largo, St. Petersburg, and throughout the greater Tampa Bay area.