Pulitzer Prize winning writer and poet Alice Walker wrote, “In nature, nothing is perfect and everything is perfect. Trees can be contorted, bent in weird ways, and they’re still beautiful.” Well, that may be true unless said tree has been “Lollipopped.” As the old adage goes, “beauty is in the eye of the beholder,” and reasonable minds can certainly differ on the beauty and aesthetics of trees in a residential environment. And furthermore, how does one even begin to assign a value to something as subjective as the aesthetic value of a tree?

That is exactly what the Nineteenth Judicial Circuit Court of Virginia was called to do recently, in the case of Carniol v. Nayak, et al., Case No. CL-2021-642. In that case, decided August 4, 2023, homeowners in Vienna, Virginia filed a civil lawsuit for nuisance against their neighbors claiming the lost aesthetic value of six white pine trees entirely on their property, near the property line. The court believed this to be a novel issue of law in Virginia, meaning that Virginia courts have never addressed this specific issue in the past.

Ultimately, the Nineteenth Judicial Circuit Court of Virginia awarded damages based on the diminution in market value of plaintiffs’ real estate due to defendants' damage to the trees. In doing so, the Court considered evidence of aesthetic loss, in this case, the plaintiff’s expert real estate appraiser's testimony about the aesthetic value of the trees as a sight and sound barrier.

The Carniols owned a home in Vienna, Virigina and have lived there since 1996. In 2013, the Nayaks moved in. However, the Nayaks did not exactly feel neighborly love toward the Carniols. It seemed that the Carniols had one fatal neighborly flaw, or six to be exact - six white pine trees, located entirely on the Carniols’ property but adjacent to the Nayaks’ property.

The Nayaks believed the encroaching branches from the pine trees caused them damage from “significant vine infestations, growth of wild plants, fallen branches and other debris, and snake infestations.” Interestingly, the Nayaks never complained to the Carniols about the trees and never requested the Carniols to trim back the trees. Yet one day, while the Carniols were away on vacation, the Nayaks decided that the trees had to be trimmed. The Nayaks hired contractors to trim those parts of the trees that encroached on their property. The Nayaks’ contractors – in their zeal to trim to the trees - entered onto the Carniol’s property and trimmed branches around the entire circumferences of the trees several feet up and effectively “lollipopped” them.

Upon the Carniols’ return home from vacation, it did not take long for them to discover that their trees had been so trimmed. The Carniols hired an arborist to assess the trees and any damage thereto. Their expert assessed the pre-pruning value of the trees at $45,800 based on their aesthetic value and functional value as a sight and sound barrier from a nearby highway. Said arborist opined that the trees sustained damage to the point that only one of the six remained viable following the pruning. The Nayaks also hired an arborist who concluded that all six of the trees were viable. Based on the advice of their own arborist, the plaintiffs had the trees removed.

At issue in this case was the valuation of the six white pine trees. Virginia courts have assigned a value to white pine trees in the past. However, those past cases involved trees that were actually “merchantable” - essentially, the trees had value as timber and thus could be assigned a stumpage value. In the Carniol case, the white pine trees served a purely aesthetic value as a sight and sound barrier. Therefore, the Carniol court first rejected the plaintiff’s assertion that stumpage value was the proper measure of damages in this case, as the trees were not merchantable.

The court then looked at the reasoning of various Virginia Circuit Court decisions, which support the proposition that “evidence of aesthetic loss can be considered in determining diminution of market value.” The court relied on the testimony of plaintiff’s expert real estate appraiser regarding the aesthetic value of the trees as a sight and sound barrier. The appraiser valued the diminution in the property’s market value, following the removal of the trees, at $25,000. The court awarded that amount to the plaintiffs for loss of aesthetic value.

As an agent, if you are ever getting your listing ready for market, don’t go suggesting that the seller lollipop the neighbors’ trees! Moreover, if past clients ask you for advice on such neighborly issues, tell them to seek legal counsel.