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A Tree Grows In Burlington

In Alvarez v. Katz and Berger, 2015 VT 86 (June 19, 2015), the Vermont Supreme Court ruled that homeowners have the right to remove tree branches and roots that encroach onto their property, even when removal of the branches may kill the tree.

Issue: The plaintiff Alvarez family shares a property line with the defendants, Katz and Berger. Although the base of the tree was entirely on the Alvarez property, almost half of the tree’s branches and roots extend in the Katz/Berger lot. Katz and Berger obtained permits to expand their South Burlington home. The expansion necessitated removing the branches and roots that extended onto their property. The Alvarezes filed suit seeking an injunction, claiming that if Katz and Berger removed the encroaching branches and roots, the tree would die. The trial court agreed, citing the “urban-tree rule,” which limits the rights of adjoining property owners to remove branches if doing so would destroy the tree. A permanent injunction against trimming more than 25% of the roots and branches of the tree was entered against Katz and Berger. They appealed.

Holding: The Court rejected the trial court’s use of the urban-tree rule, and determined the case was controlled by the Court’s 1916 ruling in Cobb v. W. Union Tel. Co., 90 Vt. 342 (1916). Under Cobb, a property owner has a right to remove any branches or roots that extend into his or her property. The Court ruled that Cobb applies “without regard to the impact that such trimming may have on the health of the tree.” The judgment of the trial court was vacated and the case remanded.

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