Statutes on overhanging trees are unclear, but experts say the fruit belongs to the tree’s owner, not his neighbors
QUESTION: A neighbor’s fruit tree canopy extends significantly into our yard and creates an abundance of work and green waste for us to handle. Often more of the canopy is overhanging our yard (and other neighbors’) than the trunk owner’s yard. For more than 20 years, the tree owner concurred that the neighbors owned the fruit over their yards. But the owner recently sold, and the new owner seems to feel differently. Any "right of way" or "common law" created by long-term previous activity? Who is entitled to the fruit that grows over onto our yard? Considering we have to do the cleanup, it would seem that we should be entitled to some, if not all, of the fruit.
ANSWER: While the prevailing law in Hawaii, and elsewhere, is that if a neighbor’s tree overhangs into your yard, you have the right to trim the tree up to the property line, there is nothing specifically addressing ownership of any overhanging fruit.
At least nothing that we could uncover.
However, according to a national authority on neighbor law, the fruit belongs to the owner of the tree, no matter how much the tree overhangs onto your property.
But in Hawaii, where neighbors tend to share any bounty of fruit, the question really hasn’t been an issue. It actually hasn’t been a matter of law in other states, as well.
While many disputes involving a neighbor’s tree have been mediated, "we’ve never had one where one has accused the other of stealing their fruit," said Tracy Wiltgen, executive director of the Mediation Center of the Pacific. The organization formerly was called the Neighborhood Justice Center.
She said she did not know of any law that dealt with that subject.
Real estate attorney Randall Char said he’s aware of the law regarding branches overhanging into a neighbor’s yard, but also has not run across the issue of fruit ownership in those cases.
"I’ve never had occasion to research that particular issue, but I’m not aware of any," he said when asked whether there were any Hawaii laws dealing with that subject.
The only source we could find that addressed the issue, in general, was the book "Neighbor Law: Fences, Trees, Boundaries & Noise," by attorney and mediator Cora Jordan.
It is a frequently cited source on many issues that make neighbors unneighborly.
According to Jordan, the tree owner’s fruit is not yours, no matter that it’s attached to a branch protruding deep into your property.
Because ownership of a tree is determined by the location of its trunk, "if the trunk stands next door, the tree, branches, leaves and peaches belong to your neighbor," Jordan writes. "You may not legally help yourself to the fruit. If you do, you are, in theory, converting someone else’s property to your own use, and your neighbor could sue you."
Jordan notes there is no legal opinion on this because there really haven’t been any lawsuits over a few pieces of fruit.
And regarding ownership, she said to consider the liability of the owner if the tree causes damage to your property.
Beyond that, Jordan also notes that the "rule of ownership" makes more sense when you consider an orchard owner and the thousands of fruits at stake in that situation.
It boils down to the "owner of the lone fruit tree has the same legal rights as the orchard owner."
But what about the tree owner going onto your property to retrieve the fruit? That’s also not clear-cut.
"The law in the United States is very unclear on that question," Jordan said, because, again, people don’t tend to sue over this situation and state legislatures haven’t considered it a subject to be legislated.
One thing in your favor: You have a right to keep intruders off your property, and she said that right could outweigh the right of the fruit owner to retrieve his fruit.
Finally, what about fruit that has fallen on the ground — on your property? Yet again, Jordan said, nobody she talked to could really give a definitive answer.
The simple answer would seem to be to just ask the owner for permission to keep the fallen fruit, although that apparently won’t work in the case of your new neighbor.
But, in Jordan’s opinion, it would be safe to pick up and eat "small quantities" of fruit that have fallen onto your property. In the rare case that your neighbor gets upset, she said, you could argue the fallen fruit has little value, and if a small-claims court judge ruled against you, you would probably only pay a nominal settlement.