By J. David Aiken, UNL Water & Agricultural Law Specialist
Nebraska statutes require property owners to keep trees or bushes out of fences that divide their property from a neighbor’s. Nebraska revised statute section 34-103 states:
“Every person . . . shall maintain his [fence] portion in good repair, including the necessary removal or trimming of trees and woody growth within or encroaching upon the fenceline to repair or avoid damage to, or dislocation of, the division fence. The occurrence of trees and woody growth within or encroaching upon a division fence that causes damage to, or dislocation of, the fence shall constitute a private nuisance to the adjacent landowner’s [property rights].”
WHAT HAPPENS IF MY NEIGHBOR HAS TREES OR BUSHES THAT GROW INTO THE FENCE? You can trim everything on your side of the fence so long as that does not kill or damage the tree or bush. However, you cannot remove your neighbor’s trees or bushes in the fence without your neighbor’s permission.
WHAT IF THE NEIGHBOR DOES NOT KEEP THEIR TREES OR BUSHES OUT OF THE FENCE? If you have talked to the neighbor and they have refused to trim or remove the trees and bushes from the fence–and have not given you permission to do so, you should contact an attorney. The attorney will likely write your neighbor a letter informing them of their legal responsibility to keep the fenceline clear of trees and bushes. That letter may also indicate that you will be forced to file suit against them if they don’t keep their side of the fenceline clean. With any luck your neighbor will show that letter to their own attorney, who will check the law and then tell them what their legal responsibilities are to keep their side of the fenceline clear of trees and bushes. If that doesn’t get them clean up the fenceline, you will need to file suit to force them to keep their side of the fenceline clear of trees and bushes.
THIS SEEMS LIKE AN AWFUL LOT OF TROUBLE. CAN’T I JUST GO CLEAN THE FENCE OUT ON THEIR SIDE? No–if you did that you would be trespassing onto their private property, which is illegal in Nebraska. Private property rights are very important in American law, even protecting the property rights of those who may not be not good or responsible property owners. The law that protects your neighbor from your trespass also protects you from their trespass. So work with your attorney and it should get taken care of in the end. The judge won’t be very happy with your neighbor for not taking responsibility to keeping their side of the fenceline free of trees and bushes, and the neighbor’s attorney will let them know that as well. So the chances of your actually needing to go to court to get the neighbor’s trees and bushes out of the fence should be relatively small.
J. David Aiken, Professor (Water & Agricultural Law Specialist)
UNL Department of Agricultural Economics
402-472-1848; daiken@unl.edu
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