Question for our legal knowitalls.

[DarkLight]

General property rights question...

About 3 feet off of my property line in the neighbors yard is an old oak tree...

The large mass of the tree due to the trunk is OVER my property line and much of the tree overhangs my patio, and house, constantly raining down debris, branches, acorns, pollen, leaves,,just a ton of crap..

It has already damaged my truck with one dead branch..a small dent and some scrapes...

It has been hit by lightning and prob 30% of the tree is dead already....

My question is do I have to wait for more of the tree to fall on my property and or ME or can I have it removed?

I dont want it trimmed back not practical...since MOST of the tree is directly over my house, patio and driveway...

I want it gone before the damn thing falls on the house, cars or ME or all three?

Can I sue to preempt this damage that I know is coming?

Neighbor doesnt give a darn about the issue....

 

[greenlight]

You have the right to cut branches that lean over your property. You also have the right to dig up roots that go under your property. I'd consult the neighbor first. If he gives you permission to hire someone to get rid of the tree, that's great! Better yet, try to get him to pay for half.

Try google ing tree land boundary suits. I'm sure there is a wealth of information available.

 

[cy]

Not a legal knowitall but have a personal interest in Arborist and Stihl & Husky Chainsaws. /ubbthreads/images/graemlins/grin.gif

this is a question for Arborist Site. Go to homeowner's section.

especially pay attention to if problem branches are dead or green. Green branches falling VS dead branches falling could be treated differently.

http://www.arboristsite.com/

 

[Lurker]

If the neighbor doesn't care about the issue, he probably won't care enough to say no to your request for permission to remove the tree completely. As far as trying to get him to do it or pay for a portion of it, I'd say it is probably not worth the trouble. While his participation could save you a few hundred dollars, trying to sue him over it or otherwise create a conflict will cost you more money and/or time, effort and grief than it is worth. Remember, he will still be your neighbor long after the tree is gone. It is worth something to you to be on civil terms with your neighbor.

My (non-legal-advice) understanding is that the damage that the tree might cause to your property is probably not his legal responsibility. It might be if you give him formal notice of the risk to your property, and that risk is real and obvious, and then damage actually occurs. Then you might have a case to recover damages, but you would still have to prove his negligence in civil court which will cost you time and money. This possibility might motivate him to take some action, but does not force him to. When and if the tree falls it would most customarily be considered an act of God and your homeowner's or auto insurance will cover it. That will leave you to cover the deductible and to clean up all the junk that will fall from the tree in the mean time. Thus most of the money you saved by not paying for the tree removal will be spent to repair the damages.

Your position right now is one of limited options, especially if he objects to the complete removal of the tree. Then you can only maintain the part over your property.

 

[tiktok 22]

Don't forget to take pictures of the tree over your property before you do anything. Take pictures of any damage it has caused. If the guy would sue you for cutting down his tree, you would have a leg to stand on.

If he would sue you for cutting down the tree, I would file a counter suit for damages with the pictures for evidence.

 

[BB]

One thing to watch for... Here in Kalifornia, many of the cities have passed laws where the home owner is not allowed to substantially remove a large tree (typically at list 7-12 inches in diameter, depending on species) from our own property (and they even will charge us $150 if we don't replant a city approved tree on our lot).

So far, we have been successful in our dealings by simply asking them for a letter where they will accept liability for any damages, injury, or death now that they have been notified that a tree is a problem and that they have refused to remove (or refused us permission to remove) the tree in question.

I have yet to find anyone that will take responsibility to write that letter and they have always relented and allowed removal of the tree.

You may wish to send the letter with return receipt so that you have a copy for your files (or have a nearby witness write a statement when you give him the letter)--if needed.

You said that the owner does not care--is there anything that can change his mind? Will he get more light, are any pipes or power lines to his house affected? Will he be able to plant a lawn/garden in the space. Can he "sell the tree" for lumber--perhaps an artist or local craftsman would like the timber?

Good Luck!
-Bill

 

[DarkLight]

I have talked with the homeowner offhand about trimming, removing the tree and her jaw immediately got tight and basically opposed anything and everything.

I have a huge mess on my new patio right now from the damn tree and I am fuming mad...

I believe the tree is dangerous and a nuisance at the moment esp because of the dead sections and lightning damage.

I have taken pictures but have just found out digital pics are generally not allowed..

Its ok I have a Polaroid..

In indiana anything extending over the property line up to infinity is MY property I have found out. So I can trim the tree to hell and back across the line...

Here is a pic with the black line showing property line and trim line...

 

[Lurker]

Based on looking at that picture, I can understand your neighbor's position. The tree looks basically healthy and contributes to the character of the property and the neighborhood. Replacing a tree like that would take decades. It does not seem to be leaning over your property.

I can see a few bare branches and there may be other problems that are not obvious in that picture. It seems like a reasonable solution would be that the problem branches could be selectively removed.

Unfortunately, leaves, nuts, twigs, bird droppings, sap, etc. are going to fall from any tree and if you need to avoid that completely you shouldn't have bought property in a treed neighborhood.

 

[prescottrecorder]

[ QUOTE ]
greenlight said:
You have the right to cut branches that lean over your property. You also have the right to dig up roots that go under your property. I'd consult the neighbor first. If he gives you permission to hire someone to get rid of the tree, that's great! Better yet, try to get him to pay for half.



I'm pretty sure that your right to trim and cut stuff on your side of the property line has a catch to it. You can't do so much cutting that it will result in the death of the tree.

 

[daloosh]

I think you've got pretty sound advice so far, and BB's note of warning about local ordinances is important. Also, make sure of where the property line is located, and that it is your neighbor's tree. If you were to be lucky enough that it is your tree, then you'd not have a problem!

If it's your neighbor's or joint property by being on the property line (or growing onto the property line), you can't cut it down without her consent. And you can't trim branches on her side. And you can't charge her or ask her to come remove the leaves and sap and twigs that fall on your side, either.

I think it will also be a hard row to hoe if it falls later due to lightning or storm, rather than her negligence. It doesn't look almost dead from the picture, so it would be hard to prove she was negligent in owning the tree and letting it stand. But maybe it's worse than it looks and you can get a tree expert to opine that it's going to die and fall over from rot, that would be another story. (It is hard to see the half of the tree on her side from the picture, due to another tree nearer to the photographer.)

You can trim back the branches that overhang your side, but as mentioned above, usually not to the point of killing or endangering the tree. But it seems a good bet to get rid of the dead and dying branches soon as you can. Still, it will pay in the long run to try to be reasonable and use reason in dealing with your neighbor.

good luck,
daloosh

 

[Chop]

I always like to look at things in practical terms. You do, after all, have to live next to your neighbor and not getting along with your neighbor can really get to be a PITA.

If I were you, I'd have to stand back and access whether the situation is a bad as you are describing it to be.

As far as giving legal advise goes, I really wouldn't want to do that because the laws vary widely from state to state and parish to parish (or county to county as you guys every place else call them). The best advise that I can give you is to call an attorney that deals in such matters. The $100 or so spent for the consultation will be well worth the piece of mind.

I would, in any case, document as much as I can. As it's been mentioned above, the tree does look healthy. If lightning strikes it and something falls on your house or car, or the wind knocks a branch out of the tree, it's more than likely that it will be considered to be an "act of God," rather than negligence on your neighbor's part.

One angle that you may want to look at is the adverse impact that the tree has had on your use and enjoyment of your property. As a property owner, you do have the right to full use and enjoyment of your property. If the tree does infact impede your use and enjoyment of your property, and is found to be a "nuisance," you may have standing for a civil action.

Of course, as I said above, opening this can of worms could make life miserable; such as when a visitor of yours parks their car on the street and their tire is touching the neighbor's grass, or when you have a party and the cops show up to tell you to turn the music down because "someone" in the neighborhood called in a complaint. The "what ifs" could go on and on.

Oh, if you do decide to cut off everything that is hanging over your property line, be sure that this doesn't cause the tree to fall on your neighbors house.

Please do not consider this to have been legal advise of any sort. This is NOT my field of expertise. They are just a few thoughts. I'd advise that you seek the advise of an attorney that regularly practices in your jurisdiction. Someone that is familiar with the state and local statutes and ordinances.

 

[greg_in_canada]

Avoiding a feud with your neighbor is the #1 thing I'd
say.

You may want to get an arborist to trim back as much
overhang as you safely can without damaging the tree
or causing it to fall. (Make sure they have liability
insurance in case it blows over in the next storm after
it is trimmed.)

Greg

 

[jtr1962]

We have a similar problem. A large oak planted by the neighbor in back has branches overhanging a smaller tree in our yard. As a result our tree is dying. Our neighbor expressly planted that oak and another near it so he could stretch a hammock between them when he retires (I won't even comment on his notion of "retirement" other than to say that lying in a hammock all day is one step away from being six feet under). Anyway, it's a given that the tree won't be removed. Civil action would probably accomplish nothing except enrich a few lawyers, unless we were prepared to go the dubious route of trying to bribe the judge, which we're certainly not. A civil action would also certainly stir up unnecessary animosity also even if it was decided in our favor. We've been here almost 27 years and have no plans to move. I don't think our neighbor does either so we have to get along. All that's left legally is to cut down the offending branches over our property. I'll probably do this myself eventually if our neighbor allows me and a ladder on his property. That might be your only sensible option here-cut the branches yourself if you're physically able. If not, see what if would cost to have it done. If the tree does fall, the damage will likely be covered in your homeowner's policy so I wouldn't worry about it. Just steer clear of it if it does!

Trees do occasionally get hit by lightening during thunderstorms. If the tree got struck by lightning and burned down, that would certainly solve the problem at no cost to you, and with no animosity between you and your neighbor. Of course, there's no way to make that happen, but it becomes more likely if the tree ever grows taller than its neighbors.

BTW, did the neighbor plant this tree, or was it there already when she moved in? That might give you some leverage if the law recognizes a difference between preexisting trees and ones expressly planted in a location where they're likely to encrouch on a neighbor's property.

 

[DarkLight]

um everything to the left of the line in OVER my property...

the tree had about 25% dead due to the lightning damage, she needs to get the dead trimmed back by law anyway..