CATHERINE M. MATTHEWS (R), GRI
Broker-In Charge, Callahan Realty, Ltd.
Past President, Oahu Chapter
National Association of Residential Property Managers
Q. I have a rental property. It is a large single family home in a well developed neighborhood. The yards are separated by medium height lava rock walls. My neighbor has a huge mango tree that hangs into my yard. The house recently sold and is being rented out now. The previous owner was meticulous in caring for his yard and would clean up the rubbish from his tree in my yard. He would also share the mangoes with my tenants and me if I came by for a visit. This really compensated for not being able to grow grass, or anything for that matter, where the tree hangs in my yard because the area gets no sun. Now with the new neighbor, the rubbish and rotting fruit that fall in my yard do not get cleaned up. It smells and attracts bugs and my tenants are complaining that I should hire someone to clean the yard on a regular basis since this was beyond what I asked them to do when I rented to them.
How should I handle this with my neighbor and with my tenants?
A. This is quite a dilemma and I was surprised that I could not find a specific Hawaii statute referring to the actual situation. After checking everywhere I could think of, I have come to the following conclusion and recommendation. I am relying on information from the Mediation Center of the Pacific (formerly the Neighborhood Justice Center) and the book “Neighbor Law: Fences, Trees, Boundaries & Noise” by Cora Jordan (attorney and mediator). This book came up several times during my research and did directly address these issues.
You are allowed to cut the overhanging branches up to the property line providing you do not cause irreparable damage to the tree. There is no specific statute about who owns the fruit; it does seem to be generally considered throughout the country that the owner of the tree owns the fruit on the tree even though it hangs over in your yard. Fruit that has fallen to the ground and is still edible may be another story, since it is on your property; however, there is no actual rule about this issue.
You may not charge the owner of the tree to trim up to the property line or to dispose of branches, rubbish, or rotting fruit from the tree. The ownership of the tree is based solely on the placement of the trunk. If the trunk is wholly on a single property, then the tree belongs to that property owner.
If the trunk is on more than one property, the tree is considered a boundary tree and all owners must share in responsibility for it. It would be unlawful to remove it without the other owner’s consent.
I read a number of instances where owners had been awarded two to three times the value of their tree when it was killed by others. If you have approached the new neighbor and they are unwilling to help out with this issue, you can try the Mediation Center of the Pacific.
To address the situation with your tenant, it sounds as if the cleaning of the tree rubbish is above what you told them was expected of them in terms of cleaning the yard. You may have to hire someone to clean the yard for the time being. You can change the terms of the lease with 45-days notice if it is a month-to-month. If you have a fixed lease you may want to negotiate with the tenant about them taking on the new responsibility or paying a rental increase to include this expense should you mutually agree to renew the lease. Personally, I always include yard service from a licensed professional in the rental of a single family home. It is easy for a yard and landscaping to get away from a tenant, bugs to overtake the property, termites to get into trees, plants to die due to lack of water, even with a conscientious tenant.
It is very difficult to collect the cost of dead plants in court. A landscaper can also report back to you if a tenant is providing sufficient water to keep the yard and plants healthy. As always, forthright communication is the best first step.