The Best of the Legal Hotline: Trees and Transactions


 Tracy Rucka  |    October 18, 2021
Legal Hotline

Do you know how trees affect your transactions?

RECR encroachments

The seller is listing a property for sale. Without consulting the neighbor, the seller planted pine trees near the lot line between the sale property and the neighbor’s property. As the trees matured, the trunks and branches are encroaching on the neighbor’s property. Where in the real estate condition report can the seller disclose this? If the seller does not disclose, does the listing agent then disclose it to potential buyers?

Encroachments often involve some type of physical object belonging to one person but partially located on or overlapping on land belonging to another, such as, without limitation, fences, houses, garages, driveways, gardens and landscaping. Encumbrances include, without limitation, a right or claim of another to a portion of the property or to the use of the property, such as a joint driveway, liens and licenses. A seller completing a Real Estate Condition Report (RECR) may disclose an encroachment in question F.14, which provides:

F.14. Are you aware of boundary or lot line disputes, encroachments, or encumbrances (including a joint driveway) affecting the property?

If the seller does not disclose, the listing agent then must decide whether the possible encroachment is a fact the licensee needs to disclose as a material adverse fact or information suggesting the possibility of a material adverse fact. Sometimes the decision whether to disclose is a judgment that only the licensee and the licensee’s supervising broker can make after considering all the facts and circumstances in the situation.

More information related to encroachments is available in Legal Update 01.06, ‚ÄúEncroachments,‚ÄĚ at www.wra.org/LU0106.

Adverse possession

A property for sale is adjacent to an apple orchard. A survey revealed apple trees on the sale property about 10-12 feet over the lot line. The seller wants the buyers to acknowledge in an amendment that they are aware of the trees on the property for sale. The buyers said they do not care about the trees on the lot, but they don‚Äôt want to sign anything that would give the owner of the trees legal rights to the property. Is the drafting of an amendment borderline ‚Äúlegal‚ÄĚ and beyond duties of the licensee? What are the possible claims of the adjacent property owner?

The buyers should be referred to legal counsel for a discussion of the neighbor’s rights as they relate to the encroaching trees. Because the offer to purchase is binding on the seller and buyer only, it would not control any rights or obligations between the buyers and the owner of the encroaching trees in this scenario. Depending on how long the trees have been on the property and any arrangement between the current or past owners and the owner of the trees, the owner of the trees could potentially have some rights to that land, and possibly a claim of adverse possession.

Adverse possession, in basic terms, can take title from a legal owner and give it to one who has been in possession for an extended period of time, usually 20 years. Six basic elements must be shown to prove adverse possession under any of the adverse possession statutes.

For possession to be adverse, it must be: 

  1. Actual
  2. Open/Visible
  3. Notorious
  4. Exclusive
  5. Hostile
  6. Continuous/uninterrupted

Therefore, the neighbor may already have a claim to adverse possession regardless of the pending sale of the property.

To find an attorney, the parties may contact the Wisconsin State Bar’s Lawyer Referral and Information Service (LRIS). The LRIS can be reached by phone weekdays at 800-362-9082. The online service is available 24 hours per day at www.wisbar.org/forpublic/ineedalawyer/pages/lris.aspx. The online service permits a user to search for an attorney by geographical location and area of practice. 

Seller disclosure obligation

Does the presence of ash trees trigger a seller’s disclosure of a defect? What disclosure might the seller be required to make if the seller is aware of emerald ash borer (EAB) on the property? 

Sellers complete the RECR according to their knowledge and the definitions of defects. The statutory RECR, in Wis. Stat. § 709.03, provides as follows:

C. 5. Are you aware of current or previous termite, powder post beetle, or carpenter ant infestations or defects caused by animal, reptile, or insect infestations?

If the seller is unaware of the presence of an EAB infestation in trees on the property, the seller may have no disclosure. However, if the seller is aware of infestation or has information from an arborist regarding infected trees on the property, there would be a disclosure duty. Specifically in Madison, the city identified EAB in certain areas and marked certain terrace trees for removal. Such information would be disclosed by the seller in the RECR. The seller makes disclosures based upon the seller’s knowledge and information and the advice of the seller’s attorney.

Orchards and potential arsenic

The broker heard there may be contamination issues with a property for sale that was once a cherry orchard. Which disclosures are necessary when the property for sale is or was an apple or cherry orchard? 

Throughout Wisconsin, pesticides once used to control pests in fruit orchards left contamination. If the seller is aware of contamination for a property that currently is or previously was an orchard, the seller may be referred to the RECR or Vacant Land Disclosure Report (VLDR) to disclose. Item C.2 of the RECR refers to other potentially hazardous or toxic substances on the property. In the VLDR, item B.6 refers to brownfields or other contaminated land, and item F.5 refers to soil contamination. The WRA worked with the Department of Agriculture Trade and Consumer Protection (DATCP) to create the WRA Lead/Arsenic Pesticide Addendum. Once disclosures have been made, the WRA addendum can be used to negotiate for a soil evaluation contingency. The WRA Lead/Arsenic Pesticide Addendum is available in zipForm and in the WRA PDF forms library at www.wra.org/FormsLibrary (for subscribers only).

Tree removal prior to closing

After the offer was accepted and before closing, the seller’s large tree and some juniper bushes sustained storm damage. The seller had the tree and bushes removed from the property. The buyers are now requesting the stumps be grinded down. Is this a legal responsibility of the seller to do this, or is the seller’s responsibility to simply clean up and remove fallen trees?

The WB-11 Residential Offer to Purchase provides the seller will maintain the property in materially the same condition as the date of acceptance of the offer to purchase. If there is property damage between the acceptance date and closing, the seller is obligated to repair the damage unless the cost of the repairs exceeds 5% of the selling price. When there is damage to landscaping or trees, it may be necessary to work with a landscaper, arborist, appraiser and/or insurance provider to determine the amount of the damage.

The first question may relate to the amount of damage, and the secondary question relates to what constitutes a proper repair. It may be necessary to have the assistance of an arborist to determine what services and associated costs are possible to help meet the terms and conditions of the offer to purchase. If the parties are unable to negotiate to find a mutually agreeable solution, they should be referred to private legal counsel for advice on the matter.

Component inspection

The buyer is looking to purchase a wooded parcel of land and wants an arborist to inspect the trees on the property. How does the buyer go about including such a contingency? 

The Inspection Contingency in the WB vacant land offer is three-prong. The blank line of the contingency can be completed when the buyer wants a ‚Äúqualified independent inspector‚ÄĚ to inspect some specific feature of the property such as the roof, chimney, trees, landscaping, amenities and all other improvements. The buyer can specifically list the trees as the component to be inspected.

Overhanging trees

There is a large 120-year-old oak tree on parcel A. Due to the size of the tree, some of the branches hang over parcel B. What rights does the owner of parcel B have relating to the trimming of the oak tree? 

Keep in mind that real estate licensees cannot provide legal advice, and if consumers are looking for guidance on how to handle the overhang of tree branches and rights relating to cutting, the real estate licensee should not provide the consumer with legal opinions. The broker may suggest the neighbors work cooperatively to address concerns.

Notwithstanding, the following is for informational purposes relating to encroachment of tree branches.

In Aman v. Aushwitz (No. 84-1761, Ct. App. 1984), Aushwitz cut a branch off Aman’s plum tree and two of Aman’s bushes that encroached over Aushwitz’s land. Aman sued his neighbor for trespass and for damages to the tree and bushes. Aman was awarded $860 when the trial court found that Aushwitz trespassed at least 18 inches while cutting the tree branch and because he was careless and negligent while cutting.

Aushwitz appealed to the Wisconsin Court of Appeals. The court noted that the trial court had failed to consider the common law encroachment created by tree branches and bushes. Under English common law, Aushwitz had a common law, self-help right to cut encroaching branches at the property line. Alternatively, Aushwitz could also have sued for an injunction against Aman to remove the private nuisance created by the encroachment.

Since Wisconsin adopted English common law, the property owner has control of the space above his land to an indefinite distance. Thus, a party offended by having the neighbor’s vegetation overhanging their property may simply cut the vegetation overhang down at the property line without notice to the adjacent owner. The court concluded that Aushwitz was not careless and negligent in cutting down the bushes over his land, that Aman should not receive the awarded damages, and that the case should be sent back to the trial court to see if there are any compensable damages resulting from the 18-inch trespass.

Obviously it may be more courteous and civilized for the adjoining owners to first discuss the encroaching branches and the effect of trimming them. It is certainly wise to retain a professional to do any trimming or tree removal because, if done improperly, there is a possibility of causing damage to the landscaping or trees. The broker must refrain from providing legal advice and may recommend the parties contact a surveyor, an arborist and possibly legal counsel if they cannot come to a mutually agreeable solution.

Tracy Rucka is Director of Professional Standards and Practices for the WRA.

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