OT: Property Owners Rights Vs. That of a Neighbors

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Submitted by CDMA ENG on July 8, 2012 - 3:59pm

I have rented a couple of houses in older neighborhoods and in each case there was issue with the neighbor’s property causing issues on mine.
In this situation my neighbor, whose is a nice guy, has huge Cyprus trees in the back yard. These Cyprus trees have huge roots that are tearing up the back yard, breaking the irrigation system, and will one day start breaking up the pool and pool deck.

So... Where does this leave me? The tree roots are clearly on my property and are doing documentable damage. Does this give me leave to dig-up the roots? Can he be charged for labor of removable? If I remove the roots and the tree dies and am I liable?

Now like I said before I am just renting and I really don’t care that these things are happening but when I do buy I home I will invariably run into the same problems.
So what experiences have you Piggs ran into along this line…

CE

Submitted by svelte on July 8, 2012 - 4:10pm.

Lawyers among us can correct me, but it seems that I have read you are within your rights to cut off roots where they cross onto your property. Same with above ground branches.

What I don't think you can do is reach across the property line to prune in or over their property.

Submitted by ocrenter on July 8, 2012 - 4:16pm.

absolutely.

you can do whatever you like with the plant once it crosses over to your side of the fence. you can literally trim the tree straight up in the air in line with the property line. or in the case of the invasive roots, perfectly reasonable to chop it up as long as you do the chopping on your side of the property line.

Submitted by ltsddd on July 8, 2012 - 6:44pm.

I think OP's real question is - is the neighbor responsible for the damage being wreaked by their tree/roots?

Submitted by sdduuuude on July 8, 2012 - 7:44pm.

I would ask an insurance agent. Probably cheaper than a lawyer and any issues would be battled out between insurance companies anyway, not between your lawyer and theirs.

You could also ask my wife's sister. One of her neighbors did something (I want to say - cut the roots of a tree that was on the neighbor's property, though I don't know if they were causing damage) that caused one of her trees on her property to start listing to one side, creating a hazard.

The insurance companies decided to rip the tree down and compensate my wife's sister. Her neighbor's insurance company paid to take out the tree AND wrote her a check for over $20,000, which was the appraised value of the very old and glorious tree.

So, I'm not so sure you can just chop those roots. Again - if it were your land, I would recommend that you with your insurance company. Maybe even file a claim and see where it takes you.

Submitted by no_such_reality on July 8, 2012 - 8:48pm.

Yeah, talk with your insurance agent, then a lawyer.

Established trees have surprisingly high values.

Submitted by svelte on July 8, 2012 - 9:32pm.

Q: My neighbor's tree has roots that grew into our yard. It has damaged our foundation. The tree is located on his side of the property. What should I do?
A: You may trim the portion of the tree roots or tree branches that have crossed over the property line into your property. You should immediately consult your own attorney to protect your legal rights. - Robin Mashal, LA Litigation Lawyer

http://www.avvo.com/legal-answers/tree-r...

But I'm sure you can still get sued for it - you can get sued for anything.

Here is more legal precedent:

The decision was based on previous cases in other states. The Appeals Court looked primarily to the Massachusetts court for precedent. Any landowner has the right to protect himself by cutting branches and roots up to the property line. As the Massachusetts court stated regarding a landowner who sued, "His remedy is in his own hands." The court stated: (Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490, 76 A.L.R. 1109):

http://www.afshinpishevarlaw.com/lawyer-...

Submitted by njtosd on July 8, 2012 - 9:38pm.

Here's a good summary (have no idea whether it's accurate, but it's at least clear) regarding "California Tree Law:"

http://www.legal-news-california.tozerla...

It seems to suggest that you should be careful about trimming the roots. These sort of things vary a lot from state to state so it's best to try to find California law if possible.

Submitted by ocrenter on July 8, 2012 - 10:00pm.

we reviewed this when we did our landscaping. per our HOA rules and regs, property owner has the right to remove branches or roots on their side of property line.

Submitted by scaredyclassic on July 8, 2012 - 10:28pm.

wait--how much is an established tree worth?

it doesn't figure into an appriasal though, does it?

Submitted by njtosd on July 8, 2012 - 11:27pm.

ocrenter wrote:
we reviewed this when we did our landscaping. per our HOA rules and regs, property owner has the right to remove branches or roots on their side of property line.

Be careful - HOA rules might not trump someone arguing that stae law controls. If the tree is worth a lot, I'd be careful.

Submitted by CA renter on July 9, 2012 - 1:19am.

njtosd wrote:
Here's a good summary (have no idea whether it's accurate, but it's at least clear) regarding "California Tree Law:"

http://www.legal-news-california.tozerla...

It seems to suggest that you should be careful about trimming the roots. These sort of things vary a lot from state to state so it's best to try to find California law if possible.

This is my understanding as well. It's not as clear-cut as some would think. IIRC, I've heard about cases where the people who cut the tree limbs and/or roots had to pay substantial damages because it killed the tree.

Submitted by svelte on July 9, 2012 - 7:03am.

In a world of Twinkie defenses and successfully suing for being shot while robbing someone's house, anybody who thinks ANY decision is clear cut legally is sadly mistaken...

Submitted by EconProf on July 9, 2012 - 7:07am.

CA renter is right--in CA one cannot simply cut the roots and the branches at the property line. If it kills the tree, you may be liable.
This is a perfect case of where the two property owners ought to get together and work it out. The tree's owner needs to be appraised of the damage being done and the liklihood of it increasing in the future. Verbally at first, then in writing if no action taken, with the letter ending "...I hope we can solve this amicably and I do not have to impose on you the additional expense of my attorney."

Submitted by svelte on July 9, 2012 - 7:54am.

njtosd wrote:
Here's a good summary (have no idea whether it's accurate, but it's at least clear) regarding "California Tree Law:"

http://www.legal-news-california.tozerla...

It seems to suggest that you should be careful about trimming the roots. These sort of things vary a lot from state to state so it's best to try to find California law if possible.

From the link you sent:

"Patel defended his actions, citing California case law and statutes. From these laws, Patel argued that a landowner has the right to prune encroaching roots and branches back to his or her property line any way he or she chooses. The Trial Court agreed with Mr. Patel and the case was dismissed. Booska filed an appeal.

Appellate Court’s Analysis and Holding: The appellate court analyzed various cases and laws. Some laws emphasize that you generally have a right to control how you manage your own land. Other laws stress that you have a duty to consider the effect of your actions on your neighbors and their property.

The appellate Court held and concluded that, “whatever rights Patel has in the management of his own land, those rights are tempered by his duty to act reasonably”.

If their action of planting a tree so close to the property line caused damage on my side of the fence, I'd say I too have a right to sue them if they didn't allow me to rectify the problem. They have to be reasonable too.

Submitted by meadandale on July 9, 2012 - 11:22am.

ltsdd wrote:
I think OP's real question is - is the neighbor responsible for the damage being wreaked by their tree/roots?

I remember seeing something on the news or in Piggington recently about trees that fall over during storms and damage the neighbors property. In those cases, the property owner whose yard the tree was growing in has no liability or at least the responsibility to fix the damage is with the insurance of the affected party not the party that owns the tree.

Submitted by sdduuuude on July 9, 2012 - 5:28pm.

A simple question with a collection of remarkably different answers.

I'm going back to my original statement, with a small tweak from econ prof's answer:

Step 1 - tell your neighbor the problem and come to a solution if you can. Personally, I'd try to convince them to remove the tree at their expense and see what they say. Show them the damage and let them know that in lieu of cutting the roots, you thought you would ask nicely.

If they whine about it, go to step 2 which is file a claim with your insurance company citing the damage done and just let them go to work. Make sure you tell the neighbor that you will be doing this before you do it. I know if my neighbor came to me with this problem, I would be OK with it - I would want to see what my insurance co said about it.

Either your insurance co will tell you you are hosed; they will tell you to chop the roots as you wish;they will pay for the tree to be removed; or they will get in touch with the neighbor's insurance co and hash out a solution. Either way, they are going to know the rights.

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