Cracked pavement © banksy_boy/Shutterstock.com

Dear Real Estate Adviser,

We’re in escrow to purchase a house with a cracked driveway that’s also been raised an inch or so, thanks to the roots of a now-chopped-down tree. (Only the stump remains.) The neighbor’s driveway is also visibly cracked from the roots. While the tree sat between the two driveways, its trunk was fully on the side of the house we’re buying. Would we as new homeowners be liable for damage to the neighbor’s property?

— Tony R.

Dear Tony,

Probably not, but that’s hard to say definitively without a little more information. State laws and local civil courts vary somewhat on who’s responsible if a tree damages a neighbor’s driveway or foundation. The Virginia Supreme Court overturned a 70-year-old precedent not long ago, saying homeowners can now sue to force a neighbor to cut back roots or branches. However, most other states still use the equivalent of the so-called “Massachusetts rule,” saying that if a homeowner’s tree roots crack a neighbor’s driveway or home, then that’s the neighbor’s problem.

Other laws state that homebuyers are not responsible for damage to neighboring properties that occurred before they bought a property. That should pre-empt a claim by your new neighbor, with an emphasis on the should.

Making a nuisance

But there’s another asterisk: civil “nuisance” judgments are occasionally rendered against the owners of offending trees based on the notion that landowners are obliged to prevent conditions that may adversely affect an adjacent home’s property or interfere with their right to use and enjoy land, whether or not such an outcome was intentional. Again, since the neighbors apparently didn’t ask for compensation from the current owners, such a suit would likely fail.

When to tackle this issue

A far better time to address this problem, of course, would have been during your due diligence discovery phase and before the onset of closing. I’m a little surprised your buyer’s agent, if you’re using one, didn’t run interference for you and that you let this potentially expensive problem ride till the 11th hour. (It sounds like you really want this house!)

Dealing with the seller

If the inspection contingency timeline spelled out in your contract is yet to expire, you can certainly revisit the issue and demand a credit from sellers for replacement of the driveway (generally about $4,000 to $6,000 or more, but get a couple of bids to be sure). If the damage wasn’t listed in the seller’s disclosure, you might even be able to back out of this deal entirely, assuming you’d want to. However, if you must clearly sacrifice your earnest money to exit at this juncture, you might be best served by completing the purchase, assuming those monies are roughly equivalent to what a new driveway costs.

Coping with the neighbors

As for the neighbors, you or your agent should try to get a clear answer from sellers as to whether they’ve discussed the obvious damage with them. If the sellers are evasive, you may need to contact the neighbors directly. Sometimes a next-door neighbor with a loyalty to the seller will wait until a new owner takes over to try to demand damages. That’s why you will want to create clear documentation that you broached the subject with them before you bought; plus it confirms the problem was pre-existing.

Will lawyers get involved?

My guess is that you are going in with your eyes open about your own cracked driveway. But there is no way you should let yourself get stuck fixing two of them. If you’ve already closed, and those stray roots “suddenly” become an issue with the neighbors, contact your state’s bar association for a referral to an attorney experienced in tree law.

Here’s hoping you’re able to cut this knotty problem off at the roots. Good luck!

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