By Bais Mishpat of Lakewood

Rav Ariel Ovadia, Dayan

Q: My next-door neighbor has a couple of large dead trees in his backyard, which is adjacent to mine. One of them already fell in a storm and damaged the fence between our properties (the fence itself is mine). It’s only a matter of time before the other trees meet the same fate. Is my neighbor responsible for the damage his fallen tree caused me? Can I force him to remove the remaining trees before they too cause damage? I tried reaching out to him, but he wasn’t forthcoming; tree-trimming is quite expensive. Thank you!

A: Generally speaking, one is allowed to use his property in its usual manner, even if in the long run some damage may be caused to his neighbor’s property. An example of this would be one who plants a tree whose roots will eventually branch out and disturb the neighbor’s soil. Because the damage will only happen over the course of time and indirectly, we don’t want to curb one’s use of his own property for the sake of preventing the possibility of future damage to the neighbor’s property. (The exception to this rule would be in a case where the damage happens in a direct and immediate way—girei dilei.) The neighbor can still prevent his property from being harmed by trimming the roots but must do so at his own expense.

Accordingly, one would be allowed to keep trees near his neighbor’s property. One would also be exempt if the tree were to suddenly fall and cause damage, because he’s not at fault for the fall and the trees were rightfully planted. There’s a debate regarding the owner’s obligation to remove the debris resulting from the fall (see Piskei Mishpat 416:1). (In the event that the tree fell into a public domain, see Shulchan Aruch and Rema siman 416.) If they were originally planted in an unsafe manner, the owner would be responsible to remove it and liable if they would cause damage (in accordance with the laws of bor or eish, depending on the way in which the damage was caused).

However, if the trees were originally planted in a safe manner and are now flimsy and there’s reason to worry that they may fall and cause damage, then beis din must give him 30 days to cut and remove them safely. If it seems to beis din that the trees are likely to fall even before 30 days or that it’s very easy to remove them then, they’ll give him a shorter timeframe to remove the hazard. If, after this time has passed, the owner hasn’t cleared the trees, then he’s liable for the damage caused by their consequent fall, in accordance with the laws of bor and eish. If they fell before the time has passed, then the owner is still patur.

The Rema writes that the owner is only liable when a beis din has issued a formal warning prior to any damage resulting from the fall. But if a warning was issued by anyone other than a beis din, then the owner is not liable. The poskim discuss whether there are situations in which the owner would be liable even if no warning was issued by a beis din, i.e. if the trees pose an evident danger (see Pischei Choshen vol. 6, Ch. 8, footnote 57).

In conclusion: If the trees are an indisputable hazard, there’s a possibility that the owner must remove them at his own expense. If, however, it’s not definite that the trees will cause harm, the owner would have to consent that the neighbor remove the trees at his own expense. Only if beis din declares the trees to be a potential hazard must the owner remove them at his own expense within the timeframe he’s given by the beis din. The owner is liable for trees he had the responsibility to remove that cause damage while they fall as well as for subsequent damage after the fall.

Telling tale: Rav Ahron Leib Shteinman was once asked how it’s possible that while people engage in so much gemilas chassadim with each other and are willing to give and forgo so much for another Yid, they may still fall into petty fights over property rights and nizkei shecheinim, which can sometimes develop into tremendous machlokes. He answered that it’s specifically difficult to fargin a neighbor who may be doing something that stirs your jealousy and makes you feel like he has more than you. This is far harder than giving altruistically to the very same neighbor when he’s in a time of need.

Once, two neighbors came before Rav Nissim Karelitz. One of them wanted to stop the other from putting a couch in the courtyard. Rav Nissim said while halachically speaking, he could stop him from putting the couch there, it would be special if he could fargin him. So he did and allowed the couch to be placed there. A while later, his child fell out of the window and fell directly onto the couch!

In layman’s terms: Girei dilei refers to a usage of one’s property that causes direct damage to a neighbor’s property, which is not allowed. Its literal translation is “his arrows,” which draws the comparison between this and one who shoots arrows from his property onto his friend’s property.

This discussion is for educational purposes. For halachah l’ma’aseh, please reach out to Bais Mishpat of Lakewood.

Bais Mishpat of Lakewood hosts prestigious dayanim with exceptional expertise and fluency  in Choshen Mishpat, under the nasi Rav Yaakov Forchheimer and av beis din Rav Daniel Dombroff. Bais Mishpat can be reached for she’eilos, dinei Torah, and shtaros at 732-354-1255