Easement restriction clouds necessity to remove dead tree

Q. I read your column in the Daily Herald. I am hoping you can give us some advice on a property situation we are having.

The back 50 feet of our lot is a designated preservation easement to protect the native forest setting. We own the land but cannot remove or trim any trees in the easement without prior authorization from our village. We are also not allowed to construct any permanent structures on the easement, such as fences or sheds.

One of our large, mature oaks had two large limbs that had died. They extend into the non-easement part of our backyard. We had the village arborist come assess the tree and she agreed the limbs should be removed. She sent us a letter stating this and instructed us on how to apply for permission to remove the limbs. We did that, got approval and hired a company to remove the limbs. As a courtesy, my husband called all of our surrounding neighbors so they would not be alarmed when they saw the crew cutting down the limbs. When he was speaking to our backyard neighbor, she asked what we were going to do about the large dead oak tree in the easement. It has been dead for about two years. The trunk is on our lot on the far northeast corner, but its branches extend into all four connecting lots. Because it is so deep in the woods, we had not planned on doing anything with it. Other neighbors have left dead trees standing.

What, if any, liability do we have for the branches that extend into our neighbors' yards? If the tree were to naturally fall over some day, or a large branch were to break off, would we be responsible for damage to our neighbors' properties? We think the tree is too deep in the easement to hit anyone's house, but it could potentially damage a shed near the easement line. Taking down the tree would cost thousands of dollars.

Any advice you can give us would be most appreciated.

A. Tree disputes between neighbors are a fairly common legal issue. The threshold question is, of course, who owns the tree? This issue appears legally clear. The point where the tree emerges from the ground dictates ownership.

So, you acknowledge you own the tree. Now you are concerned about liability. What if a branch falls from your tree and damages a neighbor's property, or worse, causes personal injury?

Presuming a case like yours landed before a judge, the court would consider numerous issues, most particularly, the imminence of danger and the ease in which the damage could have been prevented.

In general, the court will apply a "reasonable care" standard. If the owner of the tree took reasonable care in maintaining the tree and a reasonable person would not have had reason to believe the tree or it's branches were a threat to person or property, it's likely the tree owner would not be responsible for damage caused by the tree. If however, a court determines that a reasonable person could have or should have known the tree presented a danger, or it was established the tree was not properly maintained, the owner could be held liable for damage caused by the tree.

In your case, knowing the tree has been dead for somewhere in the vicinity of two years, I would advise to proceed with caution. You are on notice that at some point, limbs could start falling. At the very least, I would advise having a certified arborist examine the tree regularly to determine if any limb loss is imminent. Immediately remove limbs that appear weak and could potentially cause damage. Retain records of your inspections so you could establish, if necessary, that you were diligent in assessing any potential danger the tree could cause.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to tdr100@hotmail.com or call (847) 359-8983.