The Basics of Indiana Tree Law
Central to understanding Indiana tree laws is the recognition that, like residential real estate, trees belong to the owners of the land on which they are located. However, since trees are often planted near to a property line, the law has provided specific guidance to help resolve disputes. As a starting point in understanding Indiana tree laws, the following terms can be defined as:
As with other parts of the property where the plant life is located, the owner of the tree is responsible for any damage it causes, even if the tree is legally considered to repose on the neighbor’s land. In other words, unless a neighbor has agreed otherwise, the owner of the tree that strikes the power line across the street goes without compensation and remains liable for damage caused.
Indiana law provides some unique legal protection for trees and shrubs that are planted within reasonable distance of one another or of the property line. Although a property owner has the right to trim branches or roots of trees , shrubs or vines that trespass on their land, the owner is liable if the tree overhangs another’s yard, or if the roots extend into an adjacent property. The Indiana tree laws provide protection as follows:
The law accommodates those who may need to remove a neighbor’s tree, especially if someone using reasonable force finds that the tree has become a nuisance, is sick, has a hanging branch, has roots causing damage, or even if it is just ugly. A "Terminus" tree or shrub is the building, fence, or structure built on or passing through a landowner’s property line that would undoubtedly limit the type of force applied to the tree or shrub that is "competing" for the light of day. The Indiana law allows for a dispute to be settled in court, if necessary, but first requires that the "Terminus" dissenter must give some warning that the tree or shrub will be destroyed.
Trees and Property Boundaries
One of the most ambiguous issues for Indiana landowners is the issue of a tree or other foliage straddling the boundary line between two properties. At what point is a tree considered to be the property of one or the other? The answer may be simpler than is commonly thought.
According to Indiana law, "[t]he owner of real estate has a right to control the natural vegetational growth on his land to the boundary line eventhough a part of the natural vegetational growth may be situated on land owned by another." Venice Cmty. Housing Corp. v. Maciejewski, 281 N.E.2d 117, 122 (Ind. Ct. App. 1972). That is to say, the vegetation on each property generally belongs to respective owners of the property unless some type of fence or human intervention marks the boundary line.
In regard to neighbors, for example, there is no right for one property owner to trim trees or foliage that belong to a neighbor without consent or some court order. This is true regardless of whether the tree obstructs the view of the other property or creates otherwise undesirable conditions. Neighbors establishing trimming and maintenance plans in advance with each other tends to be the best way to handle this issue. For trees that fall across property lines, see below.
There are also special rules in Indiana regarding the rights and responsibilities of property owners in regard to trees along the sidewalk. Indiana Code Section 36-7-10.1 et seq. governs municipal control of such trees that straddle the sidewalk. Under the statute, a general rule exists that "[i]f the root, trunk, or overhanging portion of a tree located on one property injures the tree located on an adjacent property, the owner of the property upon which the injurious tree is situated is required to take necessary actions as required by the standards set forth in the statute." IC § 36-7-10.1-4. If the property owner fails to do so, the adjacent property owner may bring an action in a court of competent jurisdiction to obtain the remedial relief set forth in the statute. IC § 36-7-10.1-5.
When Neighbors Clash Over Trees
All too often, neighbors experience disputes over trees. Such disagreements often regard the amount of shade trees cast into neighboring yards or on gardens or perhaps block views from windows. Many times this happens because one neighbor believes the tree roots encroach into his or her yard. Sometimes the neighbor will think the tree roots are damaging their foundation or their driveway. Other times the roots invade the sewer or drain tile and cause backup problems. These issues are not small issues for the neighbor, since the shade, the roots, or blockage can be very costly to correct. Some notices or cooperation between the neighbors can help, along with soil or tree experts. Yet, many times, the tree or roots are so deep in the ground it is impossible to stop it without taking drastic measures. Sometimes the best solution is to remove the tree. But that, too, becomes contentious as the neighbors fight over the costs of taking the tree down or the best way to do so. My initial advice is not to take the tree down. Solution can often be found or tried that do not destroy the tree. However, once the combatants communicate better they can determine if the removal is necessary. To the extent possible, we suggest that the neighbor who wants the tree gone take care of the cost and the alternative methods of remediation and removal, in order to be neighborly. However, some refusal by the neighbor to pay may be necessary in order for the tree owner to preserve the value of the tree. If the tree negotiator and communicator is not the owner of the tree, he or she probably needs a letter from the owner allowing them to cure the problem.
Indiana’s Tree Preservation Statutes
Some trees are specially designated by the State of Indiana as endangered or protected. These may not be removed or killed without legal authorization. These trees specifically include — but are not limited to — American elm, bald cypress, black gum, dogwood, eastern hemlock, green ash, Kentucky coffeetree, red mulberry, red pine, sugar maple, sycamore, tulip tree, white ash, white oak, certain oak species, and white pine. At times, the U.S. federal government can overlay a federal law relating to certain trees on private property as well. Criminal code violations for unauthorized removal of special trees or protected trees is serious- not only can you be charged with a felony, but you can be ordered to pay up to $1,000 restitution for the loss of the tree. Uncertain what tree your tree law question involves? A certified arborist can positively identify the tree in question.
Regulations on Tree Removal
Trees play a crucial ecological role, they offer shade and beauty to homes, and they can even block roadways when ice storms break a tree branch. These natural functions can conflict with human activities. Trees can block satellite signals, or shade crops, or create a dead zone in your backyard. A recent headline warned that a "man was arrested after authorities said he cut down his neighbor’s tree." The man had engaged in some extreme tactics to get the tree to his side of the property line- allegedly tying a lock blade knife to the tree, notching the tree, injecting it with diesel fuel and attempting to torch the tree. Regardless, the tree was on his property so his neighbor had no claim to it. However, for Hoyt v. Case, this would have resulted in a civil action against Hoyt for "cutting and carrying away grass, trees, or timber [of] another person." Hoyt would have had to return the limbs he cut and pay either the timber’s value or $1,000 which ever is greater. Oddly, the Indiana legislature passed the wrong law as Hoyt was charged with theft, which is the more serious offense. Can you be arrested for removing a tree on your own property? Hoelzle tells us yes, then no, and then maybe. Whether you ever need a permit depends on the status of the tree. If the tree is native or a heritage tree then no permit is not required. As an example, Sycamore trees are native Indiana trees and require no permit to remove. A "his or her agent" can remove, without a permit, any tree located on real estate owned or occupied by him or her as long as the tree is not: a. a dead or diseased native tree; b. a dead or diseased tree that is a designated heritage tree; c. a live native tree; d. a live tree that is a designated heritage or landmark tree; or e. planted trees located in a public park or on school property, except by the authority responsible for maintenance of the park or school property (IC 32-30-6-8.4(a)(1)-(5)). These restrictions do not apply to a "landscaped shrub, bush, hedge , or similar ornamental plant less than six (6) feet in height which has been domestically cultivated or traditionally prescribed on the property." (id. at (6)) If the tree has been diseased, is native, or is a designated heritage tree, then a permit is necessary. To determine if a permit is warranted, there is a Two Ounce Rule to follow. Each live, native, designated heritage tree shall be measured at four and one-half (4.5) feet above ground level or the base of the tree if the tree is located above the street grade at the location measured, and one (1) full diameter cut shall be taken of the measurement, without removing the bark; the only exception is the hazard tree. Permit applications will ask for basic information about the type of tree, the size of the tree, and why a permit is being requested. Permits can be denied. A public finding can deny a permit without a hearing or other process if: a. the proposed removal or destruction would, for the reasons identified in IC 327.30-6-8.3(b), be illegal to undertake without a permit authorizing the removal or destruction (IC 32-30-6-8.5 (a)). The rule prohibits any tree from being cut down, removed, or destroyed, unless a permit has already been granted for the same tree. (id. ) A permit for a commercial application costs $50.00 and a residential application costs $10.00 (IC 32-30-6-8.5(b)). A violation of the law may result in criminal penalties as well as a civil action for damages. The civil action is governed by IC 32-30-6-8.2 and provides for damages equal to three times the amount of "the monetary value of a live, native, designated heritage tree." The statute defines monetary value as "the appraisal of the tree based on guidelines as outlined in the International Society of Arboriculture’s (ISA) Guide for Plant Appraisal (Current edition) using methods that value trees as healthy, well-maintained assets," and provides that no damages are available for nonnative, undomesticated trees, or for trees removed by "common utility." (id.)
How Trees Affect Pavement
Trees both aid and hinder infrastructure, in different ways. Power lines can be obstructed by low hanging limbs or growth. In ideal wind and rain conditions, tree limbs can snap and cause problems for the power company when they fall on the lines. When trees are tied into the power lines by low growth, the electricity does not seem to be stopped, but when the tree rather suddenly breaks, the situation can cause power outages. Limbs falling from trees can also be dangerous to drivers or even pedestrians. In many of these cases, it is unclear who is liable for damage caused on the ground.
On the sidewalks of commercial properties, trees are a double edged sword. On the one hand, they provide shade that can cut off the worst of the warm sun for your customers. On the other hand, the roots can bust up cement slabs. This may be especially harmful to those who have mobility issues. Who is liable when a person trips and falls on a cracked sidewalk at a commercial property?
Trees are normally considered a "natural phenomenon" and because of this, the law assumes that there are numerous factors contributing to their existence. Because of this, the problem of trees damaging infrastructure is not one that is easily solved in the courts, or out on the sidewalk.
Local Controls and Ordinances
While state laws set forth some of the basic guidelines for tree management and property owners’ responsibilities, municipalities can adopt their own regulations and ordinances. These local rules can provide greater protections than state law so long as state law is not expressly preempted. The case of State of Indiana ex rel. Cursor, Inc., et al. v. Real Property Within the County of Porter, 819 N.E.2d 438 (Ind. Ct. App. 2004), review denied, is a good example of this principle in relation to rotten tree (or windbreak) removal. The State of Indiana had enacted an Indiana Code which required property owners and/or an occupant of the property to remove a decayed tree . Porter County had its own ordinance applicable to windbreaks. The ordinance provided that trees within a windbreak, which was four trees deep, from the property line were in violation of the windbreak provisions only where: 1. Such trees are dead or materially injured; 2. The trunks thereof are decayed more than one (1) foot above the ground; or 3. The trunks have hollows more than one (1) foot above the ground and/or the bark is falling off exposing such hollows and decayed wood. The court found that these requirements were not less stringent than the State Code and thus were permissible local regulations of windbreaks.