CATHERINE M. MATTHEWS (R), GRI
Broker-In Charge, Callahan Realty, Ltd.
Past President, Oahu Chapter
National Association of Residential Property Managers
My April 2 article responded to a question from the owner of a rental property about a neighbor’s mango tree with branches extending over her yard and dropping fruit and other debris. The question I intended to answer was about the obligation of the tenant of the rental property to clean the rotting fruit, leaves, and branches as outlined to them when they signed their lease. However, a member of our readership brought to my attention some inadvertently misleading statements concerning access to neighboring property, specifically ownership of overhanging fruit.
The reader brought to my attention the precedent written by Justice James Burns set in Whitesell v. Houlton 2 Haw. App. 365, 632 P.2d 1077 in 1981.
Basically, it held that the portions of overhanging plants protruding into adjacent residencies are the property of those residents, and those residents have the right to, at their own expense, cut away any part of the overhanging or underground plant found on their property. However, for legal advice, contact an attorney or refer to the opinion directly.
The decision concerned a banyan tree, so it did not specifically address fruit or flowers. However, since that time Justice Burns has stated “it’s impossible to read that opinion and not conclude that fruit belongs to the person owning the land where the fruit is hanging. … Consider the property line going straight up. That’s your property. If the branch hangs over onto your property, that part of the branch is yours. Nobody can get to it without invading your property.” (Honolulu Star Bulletin -Kokua Line 3/10/2010).
I would not want the owner of a tree overhanging a neighbor’s property to think that he or she could enter the neighbor’s property without permission for any reason related to the tree based on what I said in my article. In the question coming from a reader, which my article addressed, one neighbor was entering another’s property by mutual consent. This long standing judicial ruling clearly states that the overhanging branches belong to the property they are over as if an invisible wall runs up and down on the property line.
Once again, I am not an attorney and my intention in the April 2, 2017 article was to address the practicality of the Landlord Tenant relationship with regard to yard maintenance and as agreed.