About two years ago I purchased a home located in Clallam County, WA State. There is a hedge that runs down one side of the property line. At the time of purchase I asked the seller who owned the hedge; he said it was the neighbor's hedge. About one month after moving into my home, I hired a local fence company to put up a privacy fence to enclose my backyard. When the fence was put up, there was about a two foot clearance between the fence and the hedge. Now, two years later, the hedge is beginning to grow through my fence, and the neighbor has made no attempt to trim it back. On occasion, he has trimmed the top of the hedge but always leaves stray branches on the top portion on my side of the hedge. Also, any time he trims, he never cleans up any of the branch or leaf debris that falls on my property. I guess my question is: Doesn't my neighbor have a duty to maintain his hedge so that it does not create a nuisance on my property?

No. And the fact that you put up a fence, makes it arguably harder for him to trim your side of it.

But you have every right to trim any branches that grow through and above the fence. If the fence is not on the property line, you can go on the other side of the fence and trim anything that overlaps your property line.

First you should know what and where the property line is. Have you never had it surveyed ? The hedge may well be on your property if you don't know for sure.

You can cut any part of the hedge that is on and over your property. So all you have to do is know where your property line is.

Well, the seller says it's the neighbor's hedge. It is obvious the hedge is on the property line because of the way my asphalt driveway and gravel parking section are. The hedge runs alongside my driveway and parking section. I have also read that if I trim the hedge and damage it in anyway, I am liable. So I'm not really of the mind to trim it as I have no knoweldge of trimming hedges. From what I have read, I think in WA State the owner is responsible for ensuring his plants, trees, shrubs do not create a nuisance. I guess I may have to contact a lawyer to find out for sure. Doesn't really make sense that a neighbor could plant a hedge and then force you to maintain it.

You aren't maintaining it, trimming is not maintaining. Also don't trust the seller as to where the property lines are. Go by the description in your deed or a survey.

It is true that if you damage the hedge you could be held liable. So if you are unsure how to trim it, hire a landscaper to show you how. Just clipping some branches that overhang your property should not do any damage.

What have you read? How is nuisance defined?

I have never bought a house where the seller always knew where the properly line was, in fact most were wrong, as they were told by the people they bought it from and it was done by agreements.

In fact you don't even know for sure your fence is far enough from the real property line, you don't know for sure that you don't own the hedges.

Here is one blog that I came across: This is taken from the perspective of a hedge owner who thought his neighbor should be co-maintaining the hedge. There are a couple of other blogs I will post.

I am not an attorney but my husband IS. I read him your original post. He asked about the waist-high fence. Is that fence on your property? You noted that the hedge was inside your property line. My husband said that you are responsible for maintaining the hedge & the fence (if that also is inside your property line). If it's on your property... it's yours... period. If you can't maintain the hedge without trespassing on your neighbor's property... you must obtain their permission before entering their property to maintain the hedge. Your neighbor has no responsibility to maintain anything planted on your property. It does not matter whether the hedge was pre-existing when you purchased the property or whether your neighbor has previously pruned his side of the hedge... he has no responsibility to continue to do so. The only exception would be a legal, written document to the contrary which is unlikely. Your neighbor does have the RIGHT to prune away any of your plantings that might/are infringing on his property. But, again, he does not have to do so.

A landowner has a duty to prevent nuisances which might adversely affect the property of an adjoining landowner. A nuisance is a substantial interference with the right to use and enjoy land, which may be intentional, negligent or ultra hazardous in origin, and must be a result of a defendant's activity. If a nuisance interferes with another person's quiet or peaceful or pleasant use of his/her property, it may be the basis for a lawsuit for damages and/or an injunction ordering the person or entity causing the nuisance to stop or limit the activity. Abatement of a nuisance may involve elimination of a nuisance by removal, repair, rehabilitation or demolition. Liability to an adjoining landowner for injuries resulting from the improper use of one's property has been founded upon the legal theory of nuisance.

The encroachment of a hedge on the land of an adjoining landowner causing damage could be held to be a nuisance and result in damages against the landowner on which the hedge was located. A landowner is generally held to the duty of common prudence in maintaining hedges on his or her property in such a way as to prevent injury to his or her neighbor's property. Encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. In such a case, the owner of the hedge may be held responsible for harm caused by it, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. Real damage must be shown to result from the encroaching hedge and leaves.

Generally, however, in cases where hedges belonging to one property owner damage or destroy adjacent property, the hedge owner is only responsible for damage if some failure to maintain the hedge contributed to the damage. If the damage was solely the result of a thunderstorm or act of God, the hedge owner will not be responsible, as the damage could not have been foreseen. If the hedge owner allows the hedge to grow so that it uproots the fence, it would be considered an encroachment onto the adjacent property. In that instance, the hedge owner would be required to remove the offending hedge. A boundary hedge is one planted on the boundary line itself and should not be removed without mutual agreement. Leaves which fall off and end up on adjacent property are considered a natural occurrence and are the responsibility of the landowner on whose property they ultimately come to rest.

Property owners in every state have the right to cut off branches and roots that stray into their property, in most cases this is the only help that is provided by the law, even when damage from a tree is substantial. A property owner who finds a neighbor's hedge encroaching must first warn or give notice to the hedge owner prior to commencing work and give the hedge owner the chance to correct the problem. If the hedge owner does nothing, the tree can still be trimmed. As a general rule, a property owner who trims an encroaching hedge belonging to a neighbor can trim only up to the boundary line and must obtain permission to enter the hedge owner's property, unless the branches threaten to cause imminent and grave harm. Additionally, the property owner cannot cut the entire hedge down and cannot destroy the structural integrity or the cosmetic symmetry and appeal of a hedge by improper trimming. Local laws should be consulted for applicable requirements in your area.




Please see the information at the following links:

http://definitions.uslegal.com/n/nuisance/
http://definitions.uslegal.com/t/trees/
http://lawdigest.uslegal.com/real-estate-laws/neighbor-relations/7364/
http://lawdigest.uslegal.com/real-estate-laws/boundary,-property-and-title-disputes/7352/

When the fencing company put up the fence they actually did check the property boundaries to make sure the fence was within my property boundaries so they said the fence was actually set about one foot back from the property line. That being said the neighbor's hedge would be encroaching about 4 feet onto my property.

In addition, in WA State a fence can actually encroach two inches over the property line.

The last paragraph in post 8 is the one that covers most situations. The rest of the quotes refer to a nuisance as causing damage. Which doesn't appear to be the case. It also affirms your right to trim.

You're right. But the thing is I don't want to have to trim his hedge and it doesn't appear I have any duty to do so. So I guess I'll put a letter in their mailbox requesting that they trim the hedge and then wait and see if they do. If they don't, I think I will speak with a lawyer to see if I can hire someone to trim it and bill it to the neighbors. If not, I will wait until it damages the fence, which it will, and pursue it then.

I think, actually, that the hedge does cause a potential danger of causing harm to the fence, thereby damaging my property so I think I can require that he maintain or trim his hedge.

I believe you can hire someone and bill them. The problem is if they refuse to pay you will have to sue. And that is not going to make for good neighborly relations.

I think, actually, that the hedge does cause a potential danger of causing harm to the fence, thereby damaging my property so I think I can require that he maintain or trim his hedge.

Its not what you think. You would have to get a professional fence builder to attest that hedge poses a danger to the fence.

And again, you have to consider you will continue to live next door to these people.

Well, I can't say that they are really on their best foot for making good neighborly relations at this point either. There was a reason I put a fence up you know. :)

It's pretty easy to get a professional fence builder since I just had a professional fence builders put the fence up two years ago. It's obvious that a hedge growing too close and through a fence will damage it. I don't need a professional to validate that. You're not even suppose to have shrubbery within 16 inches of your house because air cannot circulate properly, which leads to damp wood and rot. As for living next to the neighbors, I don't even know what their names are and like I said before so far they aren't really "neighbors of the year" themselves.

It's obvious that a hedge growing too close and through a fence will damage it. I don't need a professional to validate that.

Umm, yeah you do. Even a small claims court is not going to take your word for it. It also depends on the type of fence.

Do you own a hedge by any chance?

As a matter of fact, I do, though its not on the property line. There are also plantings along the side of my neighbors house that grow over the fence onto the walkway on my side that I routinely trim.

I'm not saying a hedge can't damage a fence, but I am saying a court is not going to take your word that it might cause damage. You need to either have photographic evidence of the damage or an expert's opinion that the potential for damage is there.

In addition, in WA State a fence can actually encroach two inches over the property line.

Where do you get this?


...
I'm not saying a hedge can't damage a fence, but I am saying a court is not going to take your word that it might cause damage. You need to either have photographic evidence of the damage or an expert's opinion that the potential for damage is there.

A court, even a small claims court, can (if it chooses) take judicial notice (http://en.wikipedia.org/wiki/Judicial_notice)of the fact that branches of plants growning through a fence can eventually damage the fence.

Quoting kitty321:

In addition, in WA State a fence can actually encroach two inches over the property line. Where do you get this?

It's what the professional fence company represented when they built the fence. When putting up the fence, I wanted to make sure that the fence didn't encroach on the neighbors' property along the back of my property. The fencing company measured the boundary lines from the deed. I told them to place the fence about one foot back from the property line. I have more than enough property for my use (about 1/3 acre) so I wasn't concerned about losing a foot on two sides. I live on a corner lot. Ultimately, they talked with the backside neighbors regarding the placement of the fence, but the fence company said that a fence legally could encroach two inces over. I really don't know. I just know that this particular fencing company builds a lot of fences in this county so I think they know what they are doing. I just wish the other neighbors would trim their hedge! I really don't think I have done anything wrong in this instance as far as being the unneighborly one here. I also think it is common sense that if a hedge is growing through a wooden fence, it will damage it. I also read somewhere that if a property owner objects to the placement of the fence along a property line, he has 90 days to do so... I think it was in the WACs. It doesn't really matter anyway because the fence is well within my property lines.

Don't believe everything you are told. I seriously doubt that the 2" rule the fence company told you is the law in Washington, or anywhere else. It may be that they were saying this on the basis of a case in which the judge decided not to do anything about a 2" encroachment because he or she felt that it was de minimus.


... The fencing company measured the boundary lines from the deed. ...

Actually, in order to determine where the boundary lines are, one must measure from something fixed on the ground. It is not possible to tell by referring to the deed alone. This is one reason a survey is recommended in cases like this. Are there survey monuments at the corners of your property?


But, as you say, "It doesn't really matter anyway ...".

Well, all I know is that if my fence is not within my property boundaries then neither is my asphalt driveway that was put in when the house was built in the early 70s, which is also when the entire development was built. I will check for markers, but if I'm not mistaken this is what the measurements were taken from when the fence people installed the fence. I did see in the WACs that a property owner has 90 days to object to a boundary fence line so if this is the case, and no objection has been made in two years, it would seem to me that the fence is within the property boundary, but as I said before, I think I will contact an attorney. It just seems to me that if I owned a hedge and I could clearly see that it was growing into someone else's fence, the right thing to do would be to maintain my hedge and clean up my mess afterwards.

RCW 16.60.055
Fence on the land of another by mistake — Removal.

When any person shall unwittingly or by mistake, erect any fence on the land of another, and when by a line legally determined that fact shall be ascertained, such person may enter upon the premises and remove such fence at any time within three months after such line has been run as aforesaid: PROVIDED, That when the fence to be removed forms any part of a fence enclosing a field of the other party having a crop thereon, such first person shall not remove such fence until such crop might, with reasonable diligence, have been gathered and secured, although more than three months may have elapsed since such division line was run.

I guess what it actually is saying is that once you have a survey line run, if the fence is over your property line you have 3 months to remove it?

Well, being that everyone is so sure that I don't know what I'm doing and I must be wrong here, I actually did go out and locate the survey pins, and as I said previously, the fence company installed the fence two feet back from the pin lines. It also looks like the hedge and all of the other plants running down the property line that belong to the neighbors are at least 4 if not 5 feet over on my property line.

Well, being that everyone is so sure that I don't know what I'm doing and I must be wrong here, ...

Please forgive me. I ddn't mean to suggest that at all. I simply wanted to be sure that you weren't taking something told to you to be gospel.

It does look as though what appeared to be assumptions on your part are in fact correct.

I actually did contact an attorney today. He says that it's something land/homeowners need to stay on top of because if the neighbors can prove the hedge has grown even 20 feet over the property line and has been that way for 10 years, they actually become owners of the property by adverse possession, no matter where the pins are. I told him that when I bought the house 2 years ago, the hedge was at least 2 feet back from the fence. So in any event, I can require the neighbors to trim the hedge back to that point. If the hedge continues to encroach on my property, I can require that they remove the hedge completely.