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The Editor, Mark Bernardin, is an attorney living in MA. Please send your suggestions or comments to: TheEditor@malawforum.com
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The answers and information provided on this site are for informational purposes only and are NOT substitutes for professional legal advice. Before making legal decisions, you should discuss your specific circumstances with an attorney.
Editor's Response
If the tree was healthy and you had no prior indication that it might fall, you are probably not liable for damages caused by the tree to the fence. You might be liable if you new the tree was diseased or likely to fall and did not takes steps to prevent damage to your neighbor's property. Follow this link for more information about damage caused by trees and branches.
However, as to your second question, you need to remove the tree or pay to have it removed. It is your property and, regardless of how it got there, it is now a trespass on your neighbor's property. Good luck.
Fallen Tree las in MA
The editors response to these (three) questions appears inconsistent with one another and inconsistent with MA rulings. Under the nationally recognized MA "Tree Law" liability for consequences arising from a healthy fallen tree appear to favor neither of the interested parties and instead consider the event an "Act of God". So, unless the injured party tries to claim a trespass and barring negligence by the owner, the MA courts have generally ruled the tree owner owes no duty to the injured party. The spirit of the law is based upon the notion that if we were all so concerned our trees would damage others property or harm them we'd either never plant a tree in the first place or cut them all down.
Now while this seems a bit ridiculous - and the logical notion of liability stands on its head - it appears so, at least in MA. Other states, after many years, appear to be changing their position, recognizing that the forested, rural and bucolic world of yesteryear has been replaced by a densely populated litigious society.
And your homeowners insurance policy is not likely to rescue either party unless there is damage. Time to write to your (MA) congressman.
Liability for trees
Not sure I follow your comment, but to clarify for other readers:
There is no liability for damage caused if your tree falls and damages property or injures people, UNLESS you were negligent in ignoring an obvious problem, such as a sick or damaged tree.
If your tree, or any other piece of property you own, is trespassing on a neighbor's property, it is your obligation to remove it. If you do not, and your neighbor is forced to pay to have your tree removed, he may be able to collect the cost of that removal in an action brought in small claims court.
There is a separate issue of whether your insurance company will pay for any damage to your property caused by fallen trees or limbs. In a negligence situation (owner of tree failed to remove tree known to cause risk to people or property), the insurance companies may argue or litigate which of them should pay. In an act of God situation (wind blows a healthy tree onto a house), most policies will cover such damages, less any deductible. However, the question of which insurance company will pay for the damage, usually breaks down as follows: (1) If your tree falls on your neighbor's house, the neighbor's insurance pays; (2) If your neighbor's tree hits your house, your insurance pays; (3) If your tree falls on your house, your insurance pays; and (4) If your tree falls in your yard with no damage to property, your insurance will likely not pay, so you must pay to remove tree).