Tree Laws in Colorado: An Overview
A complex web of state and local laws governs the ownership, maintenance, and preservation of trees in Colorado. Overall, Colorado law affords landowners a great deal of discretion concerning the use and management of the trees on their property. This general deference to owner autonomy is tempered by select regulations that are designed to promote good relations between property owners with trees, local neighborhoods with trees, and the public at large with trees. As a general rule, property owners may act freely with respect to trees on their own land, but they must respect the customary rights and obligations of their neighbors with respect to trees that straddle or overhang property lines.
In addition to common law principles governing the use of trees, various state and local laws regulate trees’ ownership, maintenance, and preservation. One basic principle under Colorado law is that property owners may take any necessary action to maintain the safety and convenience of the public’s use of streets, parkways, and sidewalks in common with trees that are planted and nurtured in these areas . Property owners may prune tree limbs so as to prevent sap, juice, or debris from falling from the trees onto the public thoroughfare, and they may replace lost trees with new ones. These actions are taken without the need for government permission or supervision.
The Colorado General Assembly has substantially contributed to Colorado’s legislative framework relating to trees, but numerous local governments also have enacted ordinances regulating trees within their respective jurisdictions. Collectively, state and local statutes address trees’ ownership, use, maintenance, preservation, and protection. Two key concepts with respect to the regulation of trees are the following:
Coloradans may find that they are subject to a mix of state and local regulating authorities with respect to the trees on their properties or found within their municipalities.
Boundary Lines and Ownership of Trees
The owner of the underlying property owns everything on their property (landskaping, trees, improvements, etc.) However, the owner of the property next door may have rights as well. Generally, the state view on borderline trees is that the branches and roots of trees are not owned in common and thus the boundary line is the property line – all over hang is trespass. The state statute on this issue allows for the judge to decide the issue. Harris v. Kessler, 115 Colo. 115, 176 P.2d 263 (1946); Wallace v. Bradley, 104 P. 883 (Colo. 1909). These decisions were made before the adoption of boundary tree laws, which apply if the tree began from the neighboring property or if there is some interference with the other party’s land, minerals, or a common fence. Robert Barrett, III, Boundary Trees in Colorado, A presentation at the 2013 Rocky Mountain Mineral Law Foundation Summer Session. In Johnson v. Kirkegaard, 931 P.2d 488, the trees were on the boundary line and protruded into the Johnson’s property. The Johnsons cut the limbs that extended onto their property but did not discontinue trimming the trees. The issue before the court was whether the Johnson’s had an easement by necessity. The court held that the Johnson’s had a prescriptive easement. "An easement by necessity may be established by showing that there was unity of ownership between the dominant and servient tenement, and that when the unity was broken an easement was left on the servient part of the land, evident, apparently, or not, which was necessary, convenient, or beneficial to the proper enjoyment of the dominant tenement." Id. at 490, citing Lundy v. Sloane, 32 P. 756 (Colo. 1893). The Johnson’s claimed the trees were placed in such a way that no other trees could be planted. The other owners claimed that this argument was specious as trees with leaves and branches suffered from a minimum of 1 foot drop runoff. The trial court found that the Johnson’s established a prescriptive easement, and in order to extinguish an easement by necessity, the owner seeking to extinguish the easement had to offer to pay for the damage caused by removal of the easement. The court upheld the trial court decision that an easement by necessity existed.
Tree Disputes with Your Neighbor
We’ve all got that neighbor or neighbor’s tree that drops limbs and leaves on our property. Or that neighbor’s tree that grows into or over your property. The answer for most of those types of disputes is, pick up the branches and leaves and cut the overhanging branches down on your own.
Colorado law provides that trees that grow over property lines belong to the owner of the real estate beneath the tree. Therefore, you have the right and obligation to cut and remove branches that hang over your property line. You can even trim the tree itself to the point that it does not encroach on your property. But you may not trespass onto the neighbor’s property to cut branches and trim the tree. You must stay on your own side of the fence, literally!
In most circumstances, this is a ripe area for disputes. Folks sometimes don’t like having a neighbor on their property cutting up their trees. So, even if you do have a right to cut the tree, consider informing your neighbor that you will be doing so. And, do not do anything to harm the tree. In fact, if you in any way cause harm to the tree, that could even give rise to a claim against you.
If you can’t take care of the tree your neighbor keeps overhanging on your property Tread Lightly. Do what you can informally to resolve your issues with your neighbor. If that does not work, then you can sort things out through the Courts.
Unfortunately, when you involve a judge, you may wind up with an undesirable result for both of you. Even if you get the Court to agree with your position, it sometimes leaves one party with a result they do not like and is therefore unhappy. This situation usually ends with poor neighbor relations which just makes you want to move to a new neighborhood and leave your neighbor behind.
The bottom line is, if you can resolve the matter amicably with your neighbor – great! But make sure you do so legally. Otherwise, you run the risk of making a bad situation worse!
Removal of Trees
When it comes to tree removal in Colorado, there are rules in place to prevent property owners from harming trees protected by homeowners association ("HOA") covenants or local ordinances, or removing trees without first obtaining the necessary permits.
HOA covenants may require homeowners to obtain architectural review committee approval (and in some cases municipal permits) before removing trees. The lack of approval to remove trees may expose a homeowner to liability for damages for violating the covenants; requiring approval prior to the removal of trees limits the HOA’s ability to enforce the covenants in the future if not followed, and provides the HOA with the ability to mitigate any damages (i.e. it may prevent a neighbor from suffering property damage as a result of cutting down a tree located on common area). Note that it is not uncommon for an architectural review committee to approve a request to remove a tree if it is unsightly or presents a danger to health or safety because of disease or insect infestation.
Municipalities regulate tree removal to ensure that no one harms trees growing in public easements or on public property. For example, the City and County of Denver’s tree protection ordinance generally prohibits the removal of trees on public right-of-way unless the tree is dying, diseased, near death, dead and dangerous, dying from insect infestation, or the tree obstructs vehicular or pedestrian traffic. In addition to this ordinance, the City of Denver also employs an Urban Forester who coordinates with the Tree Inspector in reviewing applications for permits to remove trees on City property, as well as responding to reports of trees on City property that may be dead, dying, decayed, or hazardous to children, or a possible threat to safety or welfare. Per Denver Municipal Code Sec. 36-71.8, failure to comply with and violations of these tree ordinances or permits is a class 2 violation, subject to up to six months in jail or a fine of up to $999. Other municipalities in Colorado also employ their own municipal tree ordinances; check yours before proceeding with tree removal.
Colorado Trees: Protected Species and Conservation
In addition to the ordinances that void trees in a "Liability District," Colorado has other laws that protect specific trees. First, any tree that is considered a "protected tree" has inherent value. Therefore, the removal or damage to these trees is of special concern. Second, each municipality has specific ordinances that protect specific trees. For example, Westminster protects the Bur Oak tree because it is "a large shade tree." Additionally, Denver’s City & County ordinances Protected Trees that are "native species of evergreen or deciduous trees with a minimum base diameter of eight (8) inches measured four feet above ground level." Finally, Colorado State law also protects trees that are indigenous to state properties. For example, state law protects trees in National Parks (as allowed by Colorado State Parks) to prevent "damage or destruction."
Next, as you may have guessed , the location of a tree determines the municipal ordinance that protects the tree. Denver’s City & County ordinances (or applicable home rule ordinances) are the most strict. Specifically, Denver’s permits Issued Division protect trees located "in the public right-of-way or on private property in the City and County of Denver…" CDOT has specific the Department of Transportation Administrative Guidelines go into effect if a tree located on "state highway rights-of-way." Moreover, Colorado has adopted federal law that protects all types of trees located "on properties owned or leased by the United States."
Lastly, to conserve and protect our trees, Colorado provides regulations for the voluntary planting of certified trees. These regulations provide landowners with incentives (e.g., tax benefits) and protections similar to TDR programs. For example, the Department of Natural Resources provides tax incentives to encourage public and private entities to create "tree plantation easements" to conserve natural ecosystems and the environment.
Liability for Causes of Action for Tree Damage to Your Neighbor
Legal liability for damage caused by trees generally stems from statutes or negligence. In Colorado, "a very limited number of state legislature have imposed strict liability for trees . . . Such statutes are held to be in derogation of the common law and ‘are to be strictly construed." Wermers v. City of Loveland, 41 P.3d 625, 628 (Colo. App. 2001). Therefore, if a tree owner does not violate a statute, they are not automatically liable for damage the tree causes.
The common law doctrine of negligence is more applicable and is a concept that weighs heavily in Colorado tree law. Negligence involves fault and includes an element of culpability or blame. Therefore, negligence "is a breach of duty which proximately causes injury or damage." Woodsmall v. City of Longmont, 790 P.2d 897, 899 (Colo. App. 1990). As such, the test for negligence includes the following elements:
- A duty of care (general duty owed by all persons to act as a reasonable person);
- Failure to conform to standard of care;
- Resulting injury; and
- Causation (injury was proximately caused by the breach of duty).
Burden of proof is on the plaintiff. The test is what a reasonable person would do under the same or similar circumstances to determine if there was a breach.
Several factors are considered in order to determine if there was a breach of duty resulting in an actionable offense. The two most influential factors are the condition of the tree causing the injury and foreseeability, which is how a reasonable person would act in the situation to mitigate the damage. A landowner attempting to avoid criminal negligence should ensure they have satisfied the due care element. Due care is the general standard to determine whether a reasonable person would have acted in the same way or, rather, taken the same actions. Due care means that a person is "charged with knowledge and notice of the facts would have influenced the conduct of ordinary men and women in like circumstances." McCormick v. St. Francis, 276 P.3d 836 (Colo. App. 2011).
Enforcement of Tree Protection Laws and Legal Action
Colorado tree laws are enforced by local jurisdictions, such as counties and municipalities. These entities are responsible for ensuring that their communities abide by the state-wide regulations and also have the power to enforce their own rules. Local authorities typically employ code enforcement officers who investigate non-compliance complaints. If the offending party is found in violation, the officer will generally issue an official notice requiring the property owner to remedy the situation within a certain timeframe or face a fine or other penalties.
If an agreement cannot be reached between the property owner and the local government, or another party is involved, a term of compliance may go to small claims or district court to plead their case. Small claims court is less expensive, as there will have been no need for an attorney, depositions, or extensive discovery but the claimant is limited to monetary damages of $7 , 500, or $10,000 if the claim is related to contracts, debts, or sales. Small claims court is best for individuals seeking compensation from other non-government entities.
Cases involving property or injunctions (a court order to do, or refrain from doing, a specific act) usually go to district court. Although in some jurisdictions land use disputes must go before a special land use court. These cases can be lengthy and costly, making them best suited for larger disputes where resolution would require time and money that would not be achievable in small claims court. Also, if the state brings a lawsuit, it will go before the county district court.
After a judge makes a determination in either court, the parties may agree and enter a settlement order or the judge issues a judgment on the record. If the parties still cannot agree, a trial is held on the merits of the dispute after which judgment is rendered.