source:  NOLO

In most American states, if your tree or any part of it falls on your neighbors’ property and causes damage through no fault of your own (due perhaps to a snow storm, winds, hurricane, or other so-called “act of God”), you are not responsible. Your neighbors will have to file a claim with their own property insurer if they want to be reimbursed for their loss.

This will likely come as a surprise to your neighbors! But the key distinction to remember is that you weren’t actually at fault.

If, however, the tree that you own, or a branch from it, fell as a result of your negligence, you are legally liable. For example, that principle would apply if an overhanging branch had been dead for years and your neighbors had been complaining about it but you neglected to have it cut down, or if you failed to water it and it died and fell over, or something similar.

If you are liable for the damage caused by your tree falling on your neighbors’ property, your neighbors could simply ask you for compensation. You could choose to pay, to avoid further hassle and expense. Or, your neighbors could bring an action against you in small claims or county court seeking reimbursement. There, the judge might order you to pay.

Texas Law

source:  

• Section 212.905 of the Texas Local Government CodeState law that governs tree removal by placing restrictions on how municipalities can regulate tree removal in their jurisdiction.
• Section 240.909 of the Texas Local Government CodeState law giving authority to certain county commissioners courts to prohibit or restrict clear-cutting of live oak trees in unincorporated parts of the county.

Trees are often regulated by Texas municipalities. Be sure to also check your local code of ordinances for additional laws on trees. See our Municipal Laws and Ordinances page for assistance locating your local laws.

Understanding the Law

• Tree Disputes with NeighborsThis FAQ page from self-help legal publisher Nolo discusses common questions about handling neighbor disputes about trees, including “Can I trim the branches of the neighbor’s tree that hang over my yard?”
• Tree Care KitA guide from the Texas A&M Agri-Life Extension discussing a tree owner’s rights and responsibilities.
• Neighbors and Fruit TreesThis page from self-help legal publisher Nolo discusses who has the right to pick fruit from a tree in someone’s yard.
• Encroachments: Unwelcome InvadersA 2008 article from Texas A&M Agri-Life Extension which briefly discusses the issues a landowner may face with a neighbor’s encroaching tree branches, roots or grass.
• My Tree Fell on Neighbor’s Garage: Who Pays?This FAQ page from self-help legal publisher Nolo discusses how to determine who owns a tree.
• My neighbor’s tree fell into my yard during the disaster. It smashed my fence and took out my landscaping. Can I make my neighbor pay for the fence repairs and landscaping?The State Bar of Texas created this guide to legal questions from those affected by disasters. Chapter 3 is about trees and fences and addresses damaged fences in Question 3-1.

Schertz City Ordinances

Source:  Schertz 

Sec. 34-66. – Wastes from tree-trimming operations.

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It shall be the duty of any person employing a contractor, tree-trimmer, or other person to trim or prune trees or shrubs to have said trimmings removed from the premises at his own expense.

(Ord. No. 20-F-26 , § 2, 9-1-2020)

Sec. 21.9.9. – Tree Preservation and Mitigation.

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A. Purpose and Intent.

1. The purpose of this section is to conserve, protect and enhance existing healthy trees and natural landscape. It is recognized that the preservation of existing trees contributes to the overall quality and environment of the City. Trees can and do contribute to the processes of purification, oxygenation, regeneration, groundwater recharge, reduction of pollution and contaminants in aquifers, erosion and dust control, abatement of noise, provision of wildlife habitat and enhancement property values. Indiscriminate clearing or stripping of natural vegetation on any parcel is prohibited.

2. It is hereby declared the intent of the City to encourage the preservation of all trees within the City limits. While the layout of a property with respect to the placement of buildings, parking facilities and other site requirements is at the discretion of the developer of the property, it is the policy of the City to promote site layout and design in a manner which preserves the maximum amount of Protected Class and Heritage Class trees possible.

B. Applicability and Exemptions.

1. The provisions of this section are applicable to the following:

a. all new residential and nonresidential development within the City except public schools;

b. redevelopment of any residential or nonresidential property within the City that results in an increase in the building footprint or the total destruction and reconstruction except public schools;

c. any grading, filling or clearing of land in the City limits; and

d. any selective or individual removal of any Protected Class or Heritage Class Tree in the City limits.

2. The following definitions shall be applicable to the provisions of this section:

a. Protected Class Trees. Trees having a DBH (diameter at breast height measured four and one half feet above existing ground level) between eight inches (8″) and less than twenty-four inches (24″) are designated as “Protected Class Trees”.

b. Heritage Class Trees. Trees having a DBH greater than or equal to twenty-four inches (24″) are designated as “Heritage Class Trees”.

c. Damage. Damage shall be considered any injury to a tree including, but not limited to:

i. uprooting;

ii. severance of the root system or main trunk;

iii. storage of topsoil, construction materials, debris or chemicals within the drip line area;

iv. compaction of soil within the drip line area;

v. a substantial change in the natural grade above a root system or within the drip line area;

vi. pruning or removal of more than twenty-five percent (25%) of the living tissue; or

vii. Paving with concrete, asphalt or other impervious material within the drip line area. Tree grates or tree wells may be provided to preserve pervious surface within the drip line area.

3. The following are exempt from the preservation, mitigation and permitting requirements of this section:

a. Protected Class Trees located within the area of a proposed on-site sewage facility (OSSF) (A waiver to mitigation for Heritage Class trees may be requested) ;

b. Protected Class and Heritage Class Trees located within a right-of-way to be dedicated to and maintained by the City and shown on the City’s Master Thoroughfare Plan;

c. Protected Class Trees located within any utility easement, Heritage Class Trees located within any utility easement are exempt from preservation requirements only (A waiver to mitigation for Heritage Class trees may be requested);

d. Protected Class and Heritage Class trees damaged or destroyed by floods, fire, wind or other natural causes;

e. Dangerous, diseased, damaged, dead or dying Protected Class or Heritage Class trees as determined by a tree survey and a letter from a certified Texas Arborist; provided, notwithstanding the title of this section; and

f. Protected Class trees from the Undesirable Trees list in UDC Table 21.9.7F. (A waiver to mitigation for Heritage Class trees may be requested)

g. Protected Class and Heritage Class trees located on property that has an existing one family or two-family dwelling that is occupied.

h. Protected Class and Heritage Class trees of the following exempted tree species:

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C. Tree Preservation. The existing natural landscape character, especially native oaks, elms, and pecan trees, shall be preserved to the maximum extent reasonable and feasible. Except as otherwise exempted in section 21.9.9.B.3. above, a tree removal permit is required for the removal of any tree with a DBH greater than eight inches.

1. Protected Trees. Any Protected Trees not exempt from preservation in section B.3. above may be removed upon approval of a Tree Removal Permit by the Director of Parks, Recreation and Community Services Any decision of the Director of Parks, Recreation and Community Services regarding a tree removal permit may be appealed to the Planning and Zoning Commission in accordance with section 21.4.14 of this UDC.
2. Heritage Trees. Any Heritage Trees to be removed may be removed upon approval of a Tree Removal Permit by the Director of Parks, Recreation and Community Services. Any decision by the Director of Parks, Recreation and Community Services regarding a tree removal permit may be appealed to the Planning and Zoning Commission in accordance with section 21.4.14 of this UDC. All Heritage Trees shall be required to meet the mitigation requirements of this section.
3. Minimum Preservation. In the development of any site, at least twenty-five percent (25%) of all mitigatable Protected Class and Heritage Class trees must be preserved. (A waiver to the 25% preservation requirement may be requested)

D. Tree Mitigation. Any trees that are removed or damaged as a result of the approval of a Tree Removal Permit shall be mitigated for on the same site as the proposed development. The species of trees planted for mitigation purposes may not include those listed as exempt in subsection 21.9.9.B.3. above nor any of the undesirable trees identified in table 21.9.7F. All trees planted for mitigation purposes must be a species of shade tree identified in table 21.9.7.A. In the event that mitigation is not feasible on the same site as the proposed development, an applicant may request to donate trees, meeting the mitigation requirements of this section, to be planted at public parks, schools, or other approved public facilities throughout the City or provide a fee-in-lieu of payment which will be used to place trees at public parks, schools, or other approved public facilities throughout the City. Tree mitigation funds may also be utilized to install irrigation, to repair or remove damaged or destroyed trees, to preserve and protect existing Protected Class and Heritage Class trees and to purchase equipment for the preservation or protection of existing trees. Mitigation requirements are:

1. Protected Class Trees. Protected trees shall be mitigated at a one-to-one (1:1) DBH inch ratio for every tree removed. Replacement trees shall have a minimum DBH of two and one half inches (2.5″).
2. Heritage Class Trees. Heritage Class trees shall be mitigated at a three-to-one (3:1) DBH inch ratio for every tree removed. Replacement trees shall have a minimum DBH of two and one half inches (2.5″).
3. Damaged Trees. Any trees that are designated for preservation and are damaged during the construction process or that die within two (2) years of issuance of a certificate of occupancy shall be mitigated for in accordance with subsection 21.9.9.D.1. and D.2. above.
4. Mitigated Trees. Trees planted and counted towards the necessary mitigation requirements that are damaged after planting or that die within two (2) years of issuance of a certificate of occupancy shall be mitigated for at a one-to-one (1:1) DBH inch ratio for every tree damaged or that dies.
5. The amount of tree mitigation per acre is capped at 100 inches per acre. For properties where the trees are generally clustered, staff has the discretion to define the acreage of the property as an area extending 20′ beyond the tree canopy of the cluster in determining the acreage.

E. Tree Protection Standards.

1. All trees to be preserved on site shall be protected from damage caused by site excavation or construction in accordance with the following:

a. All trees shall be protected by a fence, frame or box constructed around the drip line of the preserved tree. Protection measures may not be removed until construction is complete.

b. A minimum of three inches (3″) of mulch or compost shall be spread beneath the drip line of the preserved tree.

c. No person shall excavate any ditches, tunnels, or trenches, place any paving material or place any drive or parking area within the drip line of any Protected Class or Heritage Class Tree without prior written approval of the City Manager or his/her designee at the time of Site Plan approval.

d. No person shall attach any rope, wire, nails, advertising posters or other contrivance to any Protected Class or Heritage Class Tree.

2.  It is the intent of the City to control and prevent the spread of Oak Wilt.

a. If any oak tree is wounded by intentional damage or pruning or as a result of natural causes, the damaged area shall be immediately treated with tree wound dressing.

b. All necessary and reasonable efforts shall be given during the permitted removal of any trees to utilize best known practices to prevent the spread of Oak Wilt disease to any other surrounding trees.

F. Tree Preservation Credits—Nonresidential and Multifamily Developments. To encourage the preservation of existing Protected Class or Heritage Class Trees contained within a proposed development, tree preservation credits may be requested to reduce the amount of new trees required on nonresidential and multifamily sites. Tree preservation credits can be issued for landscape buffer requirements when the tree being preserved is located within the buffer. Tree preservation credits can be issued to satisfy total trees per acre requirements of UDC Sec.21.9.7.E.2. The following minimum tree preservation credits may be requested:

1. Protected Class Trees shall receive a credit against the minimum required landscaping or mitigation standards at a one-to-one (1:1) caliper inch ratio;
2. Heritage Class Trees shall receive a credit against the minimum required landscaping or mitigation standards at a three-to-one (3:1) caliper inch ratio;

G. Tree Survey Required. Every application for a final plat for residential development or Site Plan for nonresidential and multifamily development shall be accompanied by a tree survey that includes the following information:

1. total number of DBH caliper inches of Protected Class and Heritage Class on the site;
2. total number of DBH caliper inches of Protected Class and Heritage Class to be removed; and
3. total number of DBH caliper inches of Protected Class and Heritage Class to be preserved.

H. Tree Removal Permit. A tree removal permit is required for the removal of any Protected Class or Heritage Class trees not exempt in section 21.9.9.B.2. above. The permit must be accompanied by an appropriate application and shall contain a tree preservation plan showing the following:

1. existing/proposed topography;
2. location of property lines, easement, rights-of-ways, setbacks, parking areas and sidewalks;
3. location, species and size (in DBH) of each Protected Class and Heritage Class Tree, except those trees exempted by section 21.9.9.B.2.f. above;
4. a tree inventory that summarizes the following:

a. total number of DBH caliper inches on the site;

b. total number of DBH caliper inches to be removed;

c. total number of DBH caliper inches to be preserved;

d. location of any proposed tree mitigation;

e. any proposed tree preservation credits; and

5. a summary of the tree protection methods to be utilized.

I. Waiver.

1. General. The City Manager or his/her designee may authorize waivers from the provisions of this Article when, in their opinion, undue hardship will result from requiring strict compliance. Waivers may be granted only to items specifically stated in this section. Waivers must meet one of the following eligibility requirements:

a. The tree is proposed for removal in order for the property to achieve compliance with other applicable City requirements and standards (i.e. site design or storm water management); or

b. The tree is proposed for removal because it is within a future public utility location.

2. Criteria for approval. Waivers shall be evaluated using the following criteria:

a. Removal of the tree will not have a significant negative impact on erosion, soil stability, flow of surface waters, protection of adjacent trees or windbreaks;

b. The requested waiver does not violate the intent of this section or the UDC;

c. Strict interpretation of the provisions of the section would deprive the applicant of rights commonly enjoyed by other nearby properties in the same zoning district or with the same land use that would comply with the same provisions;

d. A reasonable effort to preserve the tree has been made and reasonable alternatives have been evaluated and determined to not be feasible.

3. Any decision of the City Manager or his/her designee regarding waivers to the provisions of this section may be appealed to the Planning and Zoning Commission. When considering an appeal, the Planning and Zoning Commission shall consider the same standards as the City Manager or his/her designee as outlined above.

(Ord. No. 16-S-27 , § 6, 8-30-2016; Ord. No. 17-S-40 , § 1(Exh. A), 10-24-2017; Ord. No. 18-S-08 , § 1(Exh. A), 2-27-2018; Ord. No. 18-S-24 , § 1(Exh. A), 8-7-2018; Ord. No. 22-S-18 , § 1(Exh. A), 4-26-2022)

Sec. 78-4. – Trimming of trees and shrubs by utilities with service systems in, under, etc., streets.

An inspector furnished by the city shall supervise any and all trimming of trees, shrubs or other foliage performed by any person maintaining any utility distribution system or other service system in, under, over or along any street or other public place in the city. All such trimming shall be done in accordance with the requirements prescribed by such inspector. Such inspector may, at any time, require the trimming of trees, shrubs, or other foliage by any such person whose lines, poles or fixtures are so placed as to require trimming to keep the same free of fire and other hazards created by the proximity of such trees, shrubs or other foliage.

(Code 1976, § 16-4; Ord. No. 256, § 7, 4-20-1972)