By RVAR Counsel David Bullington

The Virginia Supreme Court in September, 2007 overruled a longstanding precedent and adopted a new rule expanding the rights and remedies available to a landowner to stop encroachment and damage to his or her property caused by a neighbor’s trees or plants.  A little background will help explain this new change.

Suppose you have just purchased a house in an older neighborhood.  The yards have majestic, mature shade trees towering near the homes.  Unfortunately, one of the trees in the neighbor’s yard near the boundary appears to be unhealthy and could fall on your property.  Or, the tree’s root system has grown onto your property such that it is damaging retaining walls, patios, sewer lines, the well, or even the foundation.  What can you do?  The answer varies from state to state, as several different rules exist.

Under the former rule in Virginia, the relief was limited.  Typically, a landowner had only “self help” rights of cutting back branches or roots of a tree which overhung or encroached on his or her property.  Sometimes, a claim for damages was available if the landowner could show that the tree or other planting was “noxious” (a term not clearly defined and possibly not applicable to typical plantings) and had caused tangible actual damages.  Injunctive relief compelling the neighbor to make the problem go away and prevent future problems by removing the tree or vegetation was not available.

This rule (called “the Virginia Rule”), developed from a time when the population was far less densely concentrated and largely rural.  However, with the extensive development and subdivision of land which has occurred in the past century, broader rules evolved in some states.  While two neighboring states recently opted to adhere to the old traditional rules (including the decidedly urban District of Columbia), in the recent case of Fancher v. Fagella, Virginia joined other states which have adopted a broader rule of relief.

In the Fancher case, Richard Fancher sued his townhouse neighbor Joseph Fagella, alleging that the spreading root system of a large sweet gum tree in Fagella’s backyard in Fairfax County had damaged his retaining wall and patio and clogged his sewer system.  Fancher also alleged that the invasive roots would damage his foundation.  Fancher sought an injunction forcing his neighbor to remove the tree to prevent problems in the future and damages to restore his property to its former condition.  The trial court, relying on the Virginia Rule set out in a 1939 case, Smith v Holt, held that even if the sweet gum tree were “noxious,” injunctive relief was not available under that rule.  In the Smith case, the unfortunate neighbor had been denied any relief for damages to his property caused by roots from a boundary hedge because the hedge was not “noxious.”

On appeal, the Virginia Supreme Court overruled the Smith case, holding it was no longer suited to modern conditions.  The Court first dispensed with the rule that a tree or plant must be “noxious” for a right of action to arise, holding that a remedy exists whenever encroaching trees or plants “cause actual harm or pose an imminent danger of actual harm” to an adjoining property.  Moreover, the Court held that in appropriate situations equitable and injunctive relief are available to force the neighbor’s removal of the tree or other offending plant.

This new ruling expands the type and flexibility of relief available to address problems caused by trees and vegetation on adjoining lots.  Such problems will only increase in the future as urban and suburban developments expand and age.  Not only can damages now be recovered with certainty, injunctive relief to stop serious problems before they occur may now be obtained in appropriate circumstances.