An Introductory Guide to Tree Laws in Michigan
Michigan homeowners, landowners, developers, and homeowners’ associations need to understand the law as it relates to trees—and I mean all kinds of trees. The law distinguishes between trees; ornamental trees; shade trees; evergreen, coniferous trees; deciduous, broadleaf trees; and at least four other types of trees that might be found in your neighborhood. Do these classifications really matter? You bet they do.
Landowners may have the right to remove or trim trees on their land, but can that authority be curtailed by law or association rules? The answer, again, is yes. When can trees be trimmed or even removed entirely? How about when trees grow too close to roads, power lines , or structures? Can trees be removed where the branches encroach on your property or block your view?
The truth is that tree disputes, if not resolved at an early stage, can lead to costly litigation. Landowners are generally entitled to use their land, subject to applicable legal limits, but trees can impact this use and create disputes. Tree law issues particularly affect the rights of homeowners to maintain landscaping or views and the ability of developers to construct new housing. Determine how tree laws impact your situation before you take action.
This blog article touches briefly on Michigan tree laws. For a more in-depth discussion of the law, click this link: Michigan Tree Law.
Who Owns and is Responsible for the Trees?
In Michigan, a common question involves the legal ramifications of trees that grow on private property and encroach onto adjoining land. This is especially true when the tree in question is an evergreen and blocks sunlight or gives off sap or pollen that makes for an uncomfortable environment on the adjacent property.
The law provides that a landowner is the owner of all plant life growing on his or her land until a different interest is knowingly conveyed. Unless an easement was expressly granted for the purpose of placing the tree, shrub, or vine on an adjoining owner’s property, the adjoining property owner has no duty to trim back roots or overhanging limbs. Therefore, if you notice a tree on an adjacent property that is overhanging your property or extending its roots underneath your soil, you are without any legal recourse—absent a previously agreed-upon easement (usually written) or a prescriptive easement (i.e. a tree planted by one party with the knowledge and expectation that the other party will take responsibility for its care) on record.
Furthermore, ownership of a tree ordinarily creates correlated rights and responsibilities—and maintaining trees on your property is certainly a right. For example, A is obligated to return all fallen limbs or fruit from B’s trees planted on A’s neighboring yard. On the contrary, B can recover from A for damages caused by some activity by A that would not have occurred if A had not neglected to trim branches on his land that consistently hung over onto B’s yard.
In sum, unless a previously agreed-upon easement or prescriptive easement exists, just because a tree on one’s land might adversely impact the use and enjoyment of an adjoining property does not amount to a nuisance under Michigan law. Likewise, just because a neighbor’s tree might be considered unsightly or unkempt, this does not give the adjoining property owner any right to trim overhanging branches without the agreement or consent of the offending neighbor.
Boundary Trees, Neighbors’ Trees and the Michigan Doctrine of Ancient Lights
A newly enacted Michigan statute deals with trees that are on or near the boundary line between two neighbors. The statute is entitled "General Fence Act" (Act 96 of 2012). The new law states: "(1) A party shall not cut down, destroy, or otherwise injure a boundary tree unless either of the following applies to at least 1 of the adjoining owners: (a) The boundary tree is dead or diseased. (b) The boundary tree is an objectively verifiable danger to a person or property." It also states: "(2) A party may cut down, destroy, or otherwise injure a boundary tree that is not dead or diseased or an objectively verifiable danger to a person or property only after doing all of the following: (a) Advising the adjoining owner, in writing, at least 10 days before cutting down, destroying, or otherwise injuring the boundary tree. The person advising under this subdivision shall send the advice using the address provided to him or her by the adjoining owner or, if the adjoining owner did not provide a street address, to any address to which the adjoining owner has directed the sender to send written communications. (b) Paying for the reasonable value of the boundary tree to a party who is entitled to it under section 7(1) of the general fences act, 1909 PA 19, MCL 242.7." "(3) If there is no written agreement between the adjoining owners under section 7(2) of the general fence act, 1909 PA 19, MCL 242.7, and no otherwise legally binding agreement between the adjoining owners respecting the boundary tree, each adjoining owner owns only to the center of the boundary tree. If the adjoining owners have agreed otherwise in writing, the terms of that agreement apply." It appears that the new statute overrules an old Supreme Court case, which held that a tree growing on the property line was owned by both parties. Michalski v Baraz, 253 Mich 44; 234 NW 150 (1931). In Michalski v Baraz, the defendant sought to remove a cherry tree that grew over the property line. He claimed that plaintiff kept his portion of the tree trimmed and that the roots of the tree had invaded his land. The Michigan Supreme Court held that because plaintiffs own actions (trimming) demonstrated that he continued to use the cherry tree, plaintiff and defendants were joint owners of the tree and its roots.
City, Village and Township Municipal Trees – All Trees Are Not Created Equal
Laws may be in place at the municipal level to protect trees. Municipalities may have their own ordinances which address tree removal, planting requirements, reforestation requirements and preservation (on public or private property). In addition, some counties and municipalities may have bylaws or rules that create tree commissions which regulate the cutting down of trees within the municipality.
Ordinances generally regulate the removal of trees on private property, while tree commissions generally regulate the removal of trees on public properties. However, both types of ordinances or rules can affect the ability to remove trees on public or private property. Not all municipalities have rules considering trees and not all municipalities have a tree commission.
Many municipalities in Michigan have promulgated rules or ordinances which prohibit cutting down trees without a permit. Many of these municipalities also have rules or ordinances which prohibit climbing, gutting or girdling a tree without a permit.
For example, Allegan County enacted a local ordinance that prohibits cutting down a tree over 4 inches in diameter. The penalty for cutting down a tree over 4 inches in diameter without a permit is $1,000 per tree and suspension or revocation of the tree cutting or professional business permit. In addition, the City of Saline has enacted an ordinance prohibiting the cutting down of trees over 8 inches in diameter. Penalties for violating these ordinances may include imprisonment and fines.
Conversely, a municipality may have an ordinance or rule which requires the planting of trees in certain areas. For example, a municipality may require that a tree must be replaced if it was cut down by a permit holder. Also, a municipality may grant a permit with a condition requiring the permit holder to plant a tree.
A tree commission is a body created by a city or municipality to address issues related to trees and is typically appointed by the city or municipality. Tree commissions can either be advisory or have regulatory authority.
In Michigan, a number of municipalities have tree commissions and have adopted tree protection ordinances. Some apply to all trees while others are more limited and only apply to oak trees, maple trees or trees in certain zoning districts.
One notable township located in Oakland County, Michigan – Groveland Township – has enacted rules and appointed a tree commission.
Some alleged violators of a tree commission rule or ordinance appeal the decision to a local court. Some of the posted decisions can be read here and here.
Causing Damage While Doing Work Around Trees
Trees, Trees and More Trees: A Comprehensive Guide to Michigan’s Tree Laws
Tree Damage and Liability Issues
A tree that damages your house, car or personal property during a windstorm, hail incident or snow event typically gives rise to a property damage claim. Commonly, the question arises as to whether the damage was caused by a natural wind or hail event or by some other cause. Another important area of concern is whether a failed tree, or parts of a failed tree, that damage another’s property can give rise to a liability claim. Michigan law generally provides that homeowners have no duty to maintain their trees so as to prevent them from causing damage to neighboring property. Thus, unless a tree is defective or diseased, the homeowner typically will not have any liability for claims related to fallen tree, branches or other debris. However, recent case law indicates that a tree owner may have an obligation to trim or control falling debris where it unreasonably interferes with the neighbor’s use and enjoyment of their property . Of course, if there is a defect in the tree itself (e.g., decay, broken branch), case law indicates that the tree owner may have an obligation to control, maintain or trim the tree in order to prevent its damage to neighboring property. If a tree has a known defective state (such as decay or fungal infection) that the property owner should have known about and this decay or infection is of a such a magnitude so as to create a risk of damage to neighboring property, Michigan courts have indicated that the owner may be liable for that damage. There must be a causal connection between the defective state of the tree and the resulting damage (the negligent act) in order to find liability. With regard to deciduous trees, the following are some actionable defects that have been held to give rise to liability in Michigan: A word of caution: If you are thinking of trimming your neighbor’s tree, you are well advised to consult an attorney or other tree care professional. There are numerous instances each year in the State of Michigan where tree trimmers have sustained injury.
Obtaining a Permit to Remove a Tree
Obtaining a permit for tree removal in Michigan can be a cumbersome process and it is subject to local ordinances. Generally speaking, a permit is needed when a tree poses a safety hazard as a result of hitting utility lines, leaning toward the road, or simply dead or dying-upon which the tree poses a risk of falling on one’s property or tavern injury to a person in the area.
Private Property
Government-Mandated Trees
The following is a list of trees which cannot be destroyed without a permit:
Black locust (Robinia pseudoacacia).
Black walnut (Juglans nigra).
Eastern hemlock (Tsuga canadensis).
Quaking aspen (Populus tremuloides).
Red oak (Quercus rubra).
Sugar maple (Acer saccharum).
Tuliptree (Tulipia americana).
Hazard Trees on Private Property
Outside of blowdowns, tops broke out, dangerous leaning, or hazardous trees, a permit is generally required for the removal of anything over 3 inches in diameter. Homes, buildings offices, and businesses within a quarter mile radius must be notified prior to the cutting of a hazardous tree. "Hazardous trees" include trees which could come in contact with a residential electrical power line if the tree were to fall. Exemptions from the cut include carp (Carpinus caroliniana) or elm (Ulmus americana).
Public Property
Michigan Department of Transportation Tree Removal
The Michigan Department of Transportation (MDOT) prohibits the destruction of MDOT trees without a permit. A written request must be submitted at least 10 days prior to the start of any tree cutting. This includes any trees obstructing utility lines, dead trees, trees diseased by Oak Wilt and difficulty growing trees. Those taking part in tree removal must be certified and must have taken part in MDOT’s training program.
Wayne County Tree Removal
Tree removal of publicly owned trees is permitted only when the tops break out, dangerous leaning are found, or a blowdown occurs. The Wayne County Department of Public Health Tree Removal Policy extends this prohibition prohibiting the destruction of trees more than 3 inches in diameter on private property.
Taking Legal Action When Trees Are Involved
When you find yourself in a tree-related legal dispute with your neighbor, Michigan law provides various mechanisms to help you resolve the matter. In many cases, mediation will be the most cost effective and quickest way to settle the dispute. Under Michigan law, mediation is required in civil cases and both the Michigan Court of Appeals (MCR 2.411) and the United States District Court for the Eastern District of Michigan (Local Rule 16.3) require a good faith effort to settle a dispute through alternative means before seeking a judgment of the court. The main downside to mediation is that the process assumes there are two sides to the disagreement, with both parties equally at fault. A tree law claim is often much less balanced. For example, suppose a neighbor has repeatedly refused to correct the problems his part of a tree has caused your part of the tree. You attempt to tell the neighbor that the branch rubbing against your window is causing damage and needs to be cut back, but he refuses to listen. Many neighbors are so stubborn that they hold up their part of the tree as though it is a shield that prevents you from cutting your part of the tree unless he gives permission, when in reality it is fully within your rights to prune your part of the tree as necessary to prevent harm to your home or business. In many instances, mediation fails not because the parties are unwilling to compromise; the problems arise because one party feels bullied and threatened by the neighbor and is hesitant to assert their rights. Unfortunately, the same problem occurs at almost all of the alternative dispute resolution programs offered by the Michigan courts and is frequently found in arbitration too—the neighbors are distrustful of each other, worried that making a reasonable demand for relief from the other party will only give the neighbor the impression that they can avoid every reasonable request for help simply by refusing to negotiate by placing unreasonable conditions on their own cooperation and threatening to take the matter all the way to court. If mediation or other forms of alternative dispute resolution fail, litigation is necessary and almost always requires the assistance of a skilled attorney. Since tree cases take so many forms, requiring the application of several different areas of the law, a qualified attorney with experience in the field of tree law is essential. The potential complications associated with litigating a tree case require a lawyer with a proven understanding of the law, the process and procedure, and who understands how to tailor a specific case around the unique sets of facts and circumstances involved.
Conclusion
It has been my pleasure to help you sort through Michigan’s tree laws. Knowing the basics can help you significantly if you’re facing possible litigation, or just want to protect your investment.
Here’s a quick recap of Michigan tree laws:
Of course, these rules don’t cover every tree-related problem you might face – but they will help get you started. When in doubt, seek legal help.
In addition to the above content (which you can find on our main Michigan Tree Laws page) , I also recommend reading the following legal resources:
Both branches of the Michigan government provide excellent legal information regarding Michigan tree laws.
The Department of Natural Resource’s website has a number of links that will explain Michigan state law and private property rights more thoroughly.
The Michigan state legislature website can help you find Michigan laws by number, meaning you’ll be able to look up the exact law that interests you quickly and easily.
The Municipal Code Corporation provides ordinances, code references, and state laws for city-specific information.