Don't Cut Down That Tree Yet – It Could Be Legally Protected, Even if It's on Your Own Property

As homeowners, we tend to be proud and possessive. My house, my lawn, my trees. But don’t make the mistake of thinking you can chop down those trees just because you feel like it. Owning a tree doesn’t necessarily give you the unrestricted right to remove it.

We tend to think of trees and plants as our personal property, and in many cases that is true. If you plant a hydrangea bush on property you own this year, you can take it out the following summer. The same goes for a rose bush or a cherry tree. But that principle doesn’t apply to every single tree. In fact, removing trees without doing your research can leave you open to legal liability.

Some trees are legally protected under a variety of laws, ranging from municipal ordinances to HOA restrictions to environmental and wildlife protections. As a former attorney, I advise on issues like this in my Gardening Lawyer series. Read on for the whole scoop.

What Legal Protections Apply to Trees?

Everyone knows that certain animals are protected by national and state laws in this country. The animals are often endangered species, such as whales, dolphins, and manatees, protected under the Marine Mammal Protection Act. But many people don’t realize that laws also protect some types of trees. Most protections are at a local level, but a few national protections exist too.

Laws relating to tree removal are generally handled at the city or county level. Local municipal ordinances may require a homeowner to obtain a permit to remove a mature tree or a protected species. The types of trees most often protected include heritage trees or native species.

If your property is part of a Homeowners Association community, your landscaping rights are governed by HOA rules, also called CC&Rs – Covenants, Conditions, and Restrictions. These rules can forbid tree removal without approval by the HOA architectural committee. And this doesn't depend on whether your town requires a permit.

Property laws may also affect your right to remove a tree. If the tree is planted in the center of your yard, property laws probably will not be a concern. But if the tree trunk sits on the property line, it is jointly owned, and you and your neighbor must agree before you can remove it.

Finally, you’ll want to check both federal and state environmental rules before taking out a tree if you live in an environmentally fragile area like a wetland. This can also be an issue if the area is a site where birds nest.

Can an HOA Actually Stop You From Cutting a Tree?

If you are asking this question, you are fairly new to a Homeowners Association (HOA). Yes, if your home is part of an HOA, you agreed to follow the CC&Rs.

Most HOAs require you to request and obtain board approval before pruning or cutting down a tree on your property. The Covenants, Conditions, and Restrictions are legally binding rules that are part of the price you pay to be part of the HOA. The administration has every right to stop you from cutting down or even trimming a tree on your property if the action violates the community's recorded CC&Rs.

What Can Happen if You Cut a Tree You Shouldn’t?

There are those risks you can’t afford to take but also risks you can’t afford not to take. The choice is always yours – to follow the laws or to close your eyes to the legalities and chop chop chip. (I mean, George Washington cut down a cherry tree and look how far he went!) But know your risks before you decide.

The average fine for cutting down a tree in a city without getting a permit is $10,000. That’s the fine in San Francisco too. In NYC, it’s $15,000. In Visalia, California, cutting down a protected valley oak without a permit is a cool $20,000.

What about HOA fees? Homeowners Association fees vary from one HOA to the next. But they typically charge administrative fines of up to $1000 plus tree replacement costs that run into the thousands of dollars. If the tree is in a protected common area or protected by local laws, fees can go up quickly to over $20,000.

If you cut or damage trees on federal public lands without federal protection, you can face criminal fines or up to one year in prison. Municipal and county governments impose direct administrative fines of up to $10,000 per tree for removing protected or wetland-adjacent trees without a local permit.

How to Determine if Your Tree is Protected?

It would be nice if a homeowner could contact one agency to determine whether a tree is protected. But alas, that is not the case. You’ll have to do a little research or hire someone to do it for you. Here are some tips to get you started.

First, consider the tree's origin. Did you buy it as a young sapling from the garden store? That probably means that it is not an endangered species. Is it still a young tree, slender and only half its full height? You probably won’t be impeded by city permitting requirements, since these often apply only to mature trees of a certain height and girth. A call to city hall can confirm this.

Second, is your home part of an HOA community? If not, HOA rules won’t apply. If so, you'll likely have to jump through hoops, so review the CC&Rs.

Third, is the tree on the property line? If not, you won't need the neighbor’s permission. If so, you’ll need to arrange a conversation about the tree. Put any agreement in writing.

Fourth, is your tree on a public right-of-way or sidewalk strip? You will probably need a permit to remove it. Ask your town’s City Hall.

Last, is your property part of a wetland, a riparian buffer, or a bird nesting zone? You may not know. If you aren’t sure, start by asking your City Forester or Urban Forestry Department for direction.

How About Dead, Damaged or Diseased Trees?

Every rule has exceptions. Many local governments allow you to remove a tree without a permit if it is dead, severely diseased, or dangerous. For example, if the tree is leaning or uprooted and poses an immediate threat to your home or to passersby, the odds are good that you can remove it. Call city hall first to confirm.

This is probably also an exception in HOA restrictions. Read your CC&Rs or just call the office and ask.

How to Remove a Tree Legally

• It isn’t that difficult to take steps to remove a tree legally. Follow this checklist:
• Check rules and regulations to see if the tree is protected or permitting is required under HOA, city, state or national laws.
• If the tree requires a permit to remove, apply for and obtain one.
• If the tree is a safety risk, document the hazardous status and provide the proof to the appropriate agency.
• Hire a tree removal professional to do the job. Make sure they are qualified, experienced, licensed and insured.