General Overview of Louisiana Tree Laws
The tree laws in Louisiana are a part of the state’s broader environmental laws, which serve to protect the state’s natural resources and biodiversity. The purpose of these laws is to ensure the sustainable management of trees, both on public and private lands, while also considering the economic and aesthetic contributions that trees make to the community. These laws also serve to prevent the unnecessary or harmful removal of trees, promote reforestation, and encourage the preservation of trees in future development projects. One key aspect of Louisiana tree laws is the regulation of activities related to tree cultivation, harvest, and removal. This includes licensing requirements for those engaged in the silviculture (forest cultivation) industry and restrictions on the use of certain chemicals in the treatment and growth of trees. For example, Louisiana requires a permit for the removal or destruction of heritage live oak trees in certain areas, in order to preserve the state’s ecosystem and cultural heritage. In addition to regulations on the cultivation and removal of trees , Louisiana tree laws also address the protection of private property from damage by surrounding trees. The law allows landowners to enter upon neighboring property to trim overhanging branches or roots, provided certain conditions are met, including the provision of notice to the adjoining landowner. Finally, Louisiana tree laws provide for compensation in the event that a tree is damaged or destroyed. If a tree is cut down or damaged in a manner not authorized by law, the owner of the tree has a cause of action for damages. However, to be compensated for a loss, the property owner must have an insurable interest in the tree at the time the damage occurred. Overall, the tree laws in Louisiana are designed to promote the responsible planting, maintenance, and removal of trees throughout the state, while also providing legal recourse in the event that a tree is damaged. By establishing both general guidelines for tree ownership and maintenance as well as specific protections for certain species of trees, Louisiana’s tree laws seek to balance the economic, ecological, and social impacts that trees have on the state and its citizens.
Ownership and Boundary Issues Regarding Trees
As with most states, Louisiana’s laws on the ownership of trees follow common traditions in Anglo-American property law. In other words, there are a number of precedents set by previous legal decisions on tree ownership and trespass cases that govern the current state of law. The evergreen maxim, "the owner of the soil owns everything up to the sky and down to Hell" (known as quan-tum sanitas), explains that the landowner technically owns everything above and below their property line. Therefore, the onus for maintaining trees and related structures like fences falls upon the property owner. Further, because of the nature of a tree’s growth and location, property lines readjust in line with the encroaching trunk as it grows.
As an example, if a tree is evenly split between two neighboring properties, cutting it down can be an issue between the two neighbors. Assuming that both neighbors agreed to split the cost of cutting the tree, each neighbor would then be responsible for the cleanup of his or her own respective side of the tree with respect to any resulting damage. Likewise, if a tree overhangs a neighboring property line, the neighbor on whose property the tree is planted has the exclusive right to remove the offending branches. The tree owner would then be responsible for cleanup of any resulting damage to the non-owner’s property. If the tree was planted without malice, then the tree owner would not be responsible for any resulting damages.
In Louisiana, all property owners have the right to cut off any "unjust" growing branches or roots from neighboring trees. Although the most common scenario involves the removal of neighboring branches or roots that encroach on one property and affect the property owner’s use and enjoyment of their property, cutting branches or roots off without harm to the tree itself is permissible even in the absence of such encroachment. If a neighbor’s tree deprives you of the use of some portion of your property, you may have suffered legal damage. In these cases, or in the absence of encroachment, cutting branches is not permissible because it harms the tree and thus interferes with your neighbor’s property rights.
Other parts of this Blog explain other trespass cases that turn on the law of boundary separate owners.
Liabilities for Trees and Neighbors
Neighbor Disputes and Tree Liabilities overhanging branches or the other neighbor’s tree falling into your property. There are numerous ways these issues arise, but it is safe to say that a neighbor’s tree can a source of problems for both neighbors.
Liabilities
Unless your neighbor damages your property through intentional actions, in Louisiana the default rule is that they are not responsible for damage caused by a branch or limb hanging over into your yard or a tree that falls into your yard. Only if the tree or branch was in a dangerous condition and that condition was known or should have been known by your neighbor does it become their liability.
Common scenarios:
This scenario occurs very often, with routine and predictable results. The neighbor who fell the tree is liable because you cannot do anything that causes damage to another’s property. Typical result: liable for damage.
This scenario also occurs very frequently. Louisiana has long recognized the called the "natural servitude of non-fences." What this means is you cannot keep a tree in your yard that damages a neighbor’s property. Sometimes this requires cutting the roots of the tree or removing it. Typical result: the victim neighbor is awarded damages for their losses, including attorney fees.
Bad advice: "Just cut the limb and if you have to replace the fence, then you can sue." Most of the time, you do not have that right. An exception to this is if the tree is an invasive species. Then you may be allowed to enter the the property and cut the tree. Typical result: unless the tree is an invasive species, you cannot do anything to the tree on the other neighbor’s property. You may be liable for damages if you do.
Since 2018, you may be capable of recovering damages for the loss of enjoyment of your property. This type of damages is generally selective and calculated on the higher end of the spectrum.
Protected Trees & Permits
Many coastal municipalities, such as New Orleans and St. Bernard and Plaquemines Parishes, have designated "protected trees" to restrict removal and ensure preservation for the citizens of their parishes. In addition to the oak, baldcypress, and sycamore tree species mentioned above, Louisiana state law designates a few additional trees as "protected trees." These trees include: Magnolia Grandiflora (Southern magnolia) and Magnolia Virginiana (Sweetbay). Depending on the governing body, a permit may be required to remove, damage, or destroy protected trees . Another ordinance that may come into play is the Special Scenic Review Process for Section 106 of the National Historic Preservation Act.
Permit procedures may vary by municipality. Typically, however, permits are required to be obtained before any protected tree is removed, damaged, or destroyed. The application for the permit may be granted or denied. If granted, the collected fees are typically divided between the municipality and the Preserve the Oaks Fund. A fee may also be required upon the issuance of a permit. Failure to obtain a permit or comply with a permit could result in fines and/or other legal repercussions.
Tree Maintenance, Cutting, Damage and Destruction
While Louisiana’s Civil Code exonerates property owners from liability for the natural condition of their trees, regardless of whether those trees are damaged, diseased or dead, there is nothing in Louisiana law which prohibits the legislature or local municipalities from adopting ordinances or regulations requiring property owners to maintain their trees and vegetation on their properties—and there are numerous such ordinances and regulations. Louisiana Revised Statutes 3:4273 is the earliest of these statutes, a 1976 enactment which provides that "[u]ntil otherwise provided by ordinance, no municipality shall prohibit trees or shrubs of any size, maturity, height, or root system within its jurisdiction."
The City of Baton Rouge has adopted several tree ordinances: Chapter 7 addresses trees in cemeteries, Chapter 8 addresses tree preservation, and Chapter 9 addresses trees in natural areas. Baton Rouge’s tree preservation regulations govern all trees in public places as well as all trees on private property having a diameter of at least four inches (measured 54 inches above ground) or having a trunk height of at least six feet. Under the regulations, "all trees located within the planning jurisdiction of the City of Baton Rouge shall be the property of the City of Baton Rouge, except as hereinafter provided." The city does not require landowners to plant trees; however, once trees are planted, various tree maintenance obligations are imposed.
In Orleans Parish, any lot located within the City Limits, outside of the Vieux Carré Historic District, having a circumference of two or more feet, is subject to regulation. Section 158-1477 of the Code of the City of New Orleans provides that it shall be unlawful to "plant, remove, trim, prune, or replace any tree on any property" without first obtaining a tree work permit from the city. However, "trimming and pruning may be done in order to remove a tree or limb interfering with utility wires without a permit." Further, "[u]nless a permit has been obtained for a period of five years [after it is planted], the city shall have the right to remove or require the land owner to remove any tree that was newly planted by the land owner."
Jefferson Parish’s tree regulations, Article 6 of Chapter 111 of the Code of the Parish of Jefferson (1977), provide that "[a]ll trees, shrubs, vines, and bushes shall be planted a minimum of two feet from the adjacent property line." Further, "on corner lots, shrubs, trees or other large plants shall not be permitted to grow between the property line and the street curb on any lot or parcel of land within the Vision Visibility Zone." The Vision Visibility Zone is defined as the area beginning at a distance of 10 feet from the intersection of the street curb lines measured from the edge of the driveway pavement toward the intersecting street to a point on the ground directly below the outermost point of the house, garage and front stairway. All vegetation above four feet in the Vision Visibility Zone is prohibited.
Some codes require trees to be on a certain part of the property, rather than in closer proximity to the property line. For example, in the City of Baton Rouge, "[e]very new residential structure shall be set back from the front property line a distance equal to the average setbacks of the structures in the block on either side of the new structure. New structures shall be set back at least five feet from the adjacent property."
Special Issues Related to the Environment & Wildlife
In Louisiana, the intersection of tree laws with environmental and wildlife considerations is a critical aspect of effective tree law and tickety for those dealing with property sales, construction projects, and development. Respecting our natural wildlife is part of Louisiana’s cultural identity. It is enshrined in our constitution, which reads "The natural resources of the state are the property of the state and shall be protected, conserved and replenished". La. Const. Art. IX., §1. A strong foundation of environmental regulations has developed under this mandate, from wetlands or waterbottoms, to forest or prairie preservation, to the prohibition of certain dangerous organisms, plants or animals. For instance, Louisiana Revised Statute §56:1064 prohibits "the importation, possession, planting, introduction, use, release, or sale of a Chinese tallow tree for any purpose." LRS §56:1064(A). A Chinese tallow is any of the formed of tree or shrub Coturnix miscellaneous. Similarly, the Louisiana and United States Conservation Service lists the long-tailed chinch bug (Insecta Hemipetra) and the cottony-cushion scale (Insecta Homoptera) among the "Harmful Organisms," "Mites, Insects and Invertebrates," in the "Field Guide for Managing the Harmful Organisms of the State of Louisiana." The rules and regulations for controlling these organism are applicable not only for importations, but also from planting and use. Especially relevant is the "Louisiana Coastal Protection and Restoration Plan Update" issued by the Louisiana Coastal Protection and Restoration Authority in June 2017. It is "a comprehensive plan to protect and restore coastal Louisiana that provides a framework for projects to sustain the coast against future losses and restore and enhance key coastal landscapes." See Coastal Protection and Restoration Authority of Louisiana , "Louisiana Coastal Protection and Restoration Plan Annual Plan 2017-2018", June 2017, p. 9. And, of course, to protect our iconic species like eagles, hawks, and owls, the Federal government has created special limitations and foe tree removals. "To facilitate the implementation of [protection measures], . . . the U.S. Headquarters U.S. Fish and Wildlife Service will make available to the public through the National eRulemaking Portal under the docket number RIN1088-AZ5 a list of states that require a permit for tree removal in priority habitat for certain birds." 50 CFR §22.3(g) Even for typical tree removals, an environmental analysis may be required for any tree that is more than six (6) inches in diameter or twenty (20) inches in circumference. "No healthy tree over six (6) inches in diameter . . . may be removed without the approval of the Director. This review is designed to prevent indiscriminate tree removal." Or the "Director" may "otherwise designate this item to be addressed during review of site plans for developments." The term "tree" means any woody stemmed plant that is or will be at least 6 inches in diameter or 20 inches in circumference at four (4) feet above average ground level. The term "site plan" means a plan prepared by a person registered and licensed in the state of Louisiana to practice landscaping or horticulture and is in compliance with the City of Baton Rouge and Parish of East Baton Rouge Tree Ordinance, as may be amended." Baton Rouge, La., Code of Ordinances §6:152.