• Paul Goeringer

Maryland Property Owners Are Limited to Self-Help When Dealing With Vegetation Encroaching Property

Updated: Jul 11


Image by Ms. Jackson via Flickr.com. Image shows panda eating bamboo.

The article is not a substitute for legal advice. See here for the site’s reposting policy.


Author’s note: a shorter version of this post is located on the Maryland Grows blog that is hosted by the University of Maryland Extension’s Home and Garden Information Center (https://marylandgrows.umd.edu/). They will be posting future posts by me focused on legal issues for homeowners.


Have a neighbor who has planted bamboo or another invasive plant species near your shared property line and now that plant has started encroaching on your property? What can you do in this situation? Maryland has only one decision discussing damage from plants growing on a neighbor’s property. In Melnick v. C.S.X. Corp., the Court of Appeals of Maryland limited landowners to self-help to remove invasive plant species from growing on your property. The courts in Maryland have found that “it is undesirable to categorize living trees, plants, roots, or vines as a “nuisance” to be abated. Consequently, we decline to impose liability upon an adjoining landowner for the “natural processes and cycles” of trees, plants, roots, and vines.” (Melnick, 520-521). Self-help means it will be up to you to remove the roots, limbs, vines, and other plant debris and not the neighbor who planted the invasive plant species. A neighbor cannot seek damages in court for the damages caused by the invasive plant species.


Melnick involved a landowner whose property included a warehouse near a shared common boundary with a railroad right-of-way. The right-of-way contained a tree with limbs growing over Melnick’s property and tree roots and other plant life which encroached on his property, causing damage to his warehouse. Melnick had tried self–help, but that had been unsuccessful. Melnick brought an action for trespass, negligence, and nuisance seeking damages from the railroad.


The Court of Appeals of Maryland (the state’s highest court) had never decided this issue before. The court found state courts around the country dealing with this issue had taken a variety of paths. In looking at the options, the court decided to take the same approach as Massachusetts courts, which limit a neighboring landowner complaining of issues from encroaching vegetation to self-help. The court rejected other states’ approaches because those approaches required a court to distinguish between natural vegetation versus artificial vegetation, natural vegetation versus noxious vegetation, or vegetation causing harm other than casting shade or dropping leaves, flowers, or fruits. These other states’ views could potentially create a large influx of disputes for the court. As the court pointed out, “We have gotten along very well in Maryland, for over 350 years, without authorizing legal actions of this type by neighbor against neighbor.” (Melnick, 320).

Image of bamboo growing. Image is by Solarisgirl via flickr.com

In a more recent court decision, a property owner in a homeowners association (HOA) brought a lawsuit against the HOA and the company managing the HOA. The property owner owned a lot near a park in the HOA and had trees from the park overhanging the property owner’s carport. The Court of Special Appeals of Maryland pointed out that the property owner was limited in Maryland to self-help and could not sue to force the HOA to trim back trees overhanging the carport from the park (Warshanna v. Hickory Hollow Cmty. Ass’n).


In Maryland, the courts have limited a neighboring landowner to self-help in the cases of invasive species on the neighboring landowner’s property. Although Maryland has had no court case dealing with an invasive species, Maryland’s courts seem to be limiting all plant overgrowth cases to self-help, meaning a neighboring landowner will bear the burden of stopping overgrowth on his/her property. The neighboring landowner will have to cut back roots, remove bamboo/plant life on their property, cut back tree limbs themselves, etc., to keep their property from being damaged by the overgrowth.


The Maryland courts have taken this route out of a possible fear of being overwhelmed by lawsuits involving neighbors complaining about plant overgrowth issues, and courts being unable to decide these issues. This concern could be overblown based on a review of states’ court decisions involving plant overgrowth. Courts have handled claims of negligence and nuisance (legal theories neighboring landowners would utilize to force a landowner to clear up plant overgrowth) for centuries and often are asked to decide fault in negligence or nuisance lawsuits with the assistance of expert testimony. Changing this rule and providing landowners with a legal avenue to decide these claims may also prevent disputes arising from a neighboring landowner taking self-help too far, causing strained relationships with neighbors.


What can a neighboring landowner do? Neighboring landowners may have to consider taking proactive steps to prevent invasive species, such as bamboo, from moving onto the landowner’s property. University of Maryland Extension’s Home & Garden Information Center provides resources, for example, on how to control bamboo.

Until the Court of Appeals of Maryland changes this rule, Maryland landowners are limited to self-help as their only remedy. In utilizing self-help, neighboring landowners should utilize experts to assist in making ensure that the self-help removal does not injure the plant life, potentially opening up other lawsuits against the neighboring landowner.


References

Melnick v. C.S.X Corp., 312 Md. 511 (1988).

The University of Maryland Extension. Home & Garden Information Center: Bamboo, available at http://extension.umd.edu/hgic/bamboo (last visited, March 28, 2018).

Warshanna v. Hickory Hollow Cmty. Ass’n, No. 2056, 2016 WL 181614 (Md. Ct. Spec. App. Jan. 12, 2016).


#ALEI #bamboo #invasiveplantspecies #nuisance

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