How Property Laws Affect Gardeners

Many residential property laws can affect the activities of gardeners. In some cases, county, state, and even Federal laws can also apply. Do you need a building permit to construct a gazebo? Does your neighbor have the right to cut off overhanging branches from a tree growing in your yard? Is it legal to knowingly disturb an actively nesting bird? Knowing what laws affect your gardening activities as well as knowing what your rights and responsibilities are to others is important.

Gardening Activities Governed by Laws*

The following 12 examples are by no means an exhaustive list, but are meant to be a good start to understanding which of your gardening activities may be impacted by laws. These laws may or may not apply to your specific area or situation. It's your responsibility to check to see if they do.

Disturbing Birds

The Federal Migratory Bird Treaty Act (1918) makes it illegal to disturb the nest of any native bird without a permit (there are exceptions). It is illegal to remove or move nests, even if:

• They are in an inconvenient location

• The babies create unsightly piles of feces underneath the nest the parents continue to drop the remains of their prey near your back door.

• It is also illegal to transport, trap or kill native non-game adult birds like Blue Jays or Mockingbirds without a permit, even if they are harassing nearby birds.

The Act also protects some non-migratory species like Morning Doves and Chickadees. Contact your state's Department of Natural Resources for more information.

Constructing Compost Piles

Many cities have laws in place that outline how compost piles should be built and maintained. Some may even ban the use of them altogether.

Building Structures

Building permits may be required before constructing (or making changes to) certain garden structures. Smaller buildings and structures like sheds, gazebos, fences, and walls may or may not need a permit as long as they meet certain height and size requirements. Decks and balconies, depending on how high they are off the ground, usually require a building permit and may also have to pass a safety inspection. Contact your local building inspector for details.

Maintaining Fences and Walls

No matter where you live, it's likely that an ordinance exists for garden fences and walls, including hedges. Many prohibit building certain types of fences in front yards or yards facing the street, and most outline specific restrictions on height. The costs associated with maintaining fences and walls are normally the responsibility of the property owner who built them, however in many cases there are no laws in place requiring owners to keep them properly maintained.

Starting Fires

Fire pits are allowed in many municipalities, although size, height, construction material and types of materials burned are usually regulated. Due to the toxins emitted, many states have now banned the use of burn barrels for incinerating garbage in rural areas. In rural areas, most landowners are allowed to burn their garden waste providing they maintain control of their fire.

Creating Noise

Most people would agree that gardens are designed to be peaceful places. This is why some residential areas restrict the number of lawn and garden machines that individual residences can have running at any one time. Professional landscapers and tree removal services are usually subject to a different set of laws.

Planting and Transporting Plants

In many states, the planting of certain alien or invasive species is strictly prohibited. It is also considered illegal to transport some plant species across state lines (by land, air, or sea) or import them from other countries. If you are moving to another state and want to take garden plants with you, contact that state's department of agriculture for details. If you are traveling abroad and plan on bringing plants home with you, contact the customs agency in your country of origin before departing on your trip.

Growing Trees

Trees can present all types of potential legal issues from gardeners. Here are just a few:

• Invasive species: In some areas, it's illegal to plant certain species.

• Removal: Some municipalities require permits for tree removal, especially near power lines.

• Intrusive branches and roots: If they extend beyond your property line, your neighbor usually has the legal right to prune them. The same is true to falling fruit. It usually belongs to the owner of the property it falls on.

• Falling trees and property: Generally, the responsibility lies with whoever's property is damaged. If a tree falls on your home, no matter whose property it was on, your insurance company should pay for your home repair. An exception would be if the damage occurred as a result of negligence. For example, if the tree was dead before it fell, and you had proof that your neighbor knew the tree was dead, the damage becomes your neighbor's liability.

Water use

Many communities have strict regulations on water use-especially in arid regions and during prolonged periods of drought. Permits are typically required in order to add a pond, alter a stream, or remove a beaver dam. If you want to install a backyard pool, you may be required to put a fence around it (or around your property) for liability purposes.

Weed Laws

Weed laws were originally enacted to protect noxious weeds from escaping from the gardening and crowding out the crops of nearby farmers. Today, weed laws still exist in some communities to protect the public from neglectful landowners whose un-manicured yards are feared to attract rodents, mosquitoes, or even present a fire hazard.

Unfortunately, these laws can create problems for natural landscapers who may wish to convert their lawn into a stand of native plants. On the bright side, many communities are starting to recognize the value of "naturalized landscaping", and may have ordinances in place that encourage homeowners to plant native species.

*An Important Disclaimer:

The material presented in this article (and available on this web site) is for informational purposes only, and not for the purpose of providing legal advice. Always contact a licensed attorney to obtain advice with respect to any particular legal issues or problems you may be having. Ok, on to the good stuff!