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Good Trees Make Bad Neighbors

Good Trees Make Bad Neighbors.

The actual quote from Robert Frost was somewhat different, but the result was the same: neighbors like their privacy.

 

Neighbor disputes are ubiquitous.  When trees become the fence, the issue often becomes contentious and often litigious.  These disputes commonly include anger, resentment, threats, bad acting, trespass, physical violence, and litigation.  For the consulting arborist, the assignment is always filled with emotion.

 

 

In light of these emotionally charged disputes, the first step is always to try talking to your neighbor.  Sometimes this works.  Not often, but it’s worth the effort, especially if litigation ensues.  Demonstrating good faith in a courtroom is beneficial, and it’s always nice to be nice to people, especially your neighbor.

However, if initial discussions don’t succeed, then get a survey.  This is the number one thing a judge or mediator will want to see.  The law in all states says that a tree whose trunk stands entirely on the land of one person belongs to that person.  But, a survey is definitively required if the subject tree is growing on both sides of the property line.

Require that the surveyor mark the location of the subject tree on the survey and add a special authoritative note onto the survey stating approximately how much of the tree is on your side of the boundary line and how much is growing on your neighbor’s side.  Depending on the state you live in, this authoritative note may determine the percentage of ownership.  If the tree is growing on the boundary of your property and that of your neighbor, laws differ as to who owns the tree or what percentage of the tree is owned by each neighbor.

Then, start and keep a dedicated daily diary, which also becomes useful in court.  Write down everything that happens between you and your neighbor, with dates.  Trust nothing to memory.  Take as many pictures as possible of the subject tree(s).  Remember, one picture is worth a thousand words.

Tree laws are complex, so don’t go it alone.  Retain a consulting arborist or, if one is not available in your neck of the woods, a qualified and reputable arborist.  The goal here is to retain a knowledgeable professional who won’t profit from their involvement in the matter.  You also have the police or zoning official who might help remedy the situation.

Identify the specific problem with your neighbor’s tree.  Are there overhanging branches?  Are the tree roots damaging your home, patio, sidewalk, or similar?  Then, you have the legal privilege of self-help.  You are privileged to prune overhanging branches or roots on or in your property, but you cannot trespass (Gallo v. Heller).  Not even just a little to reach that one place to make the perfect cut on a branch.  Not an inch over your property line.  The law doesn’t like trespassing, and the penalties are severe.

But be aware of potential legal repercussions.  Can you be sued by your neighbor if you caused damage to their tree while initiating self-help?  The jury is still out in many states on that very question.  If possible, avoid causing irreparable damage to your neighbor’s tree while you initiate the privilege of self-help.  Did you first write a nice, friendly letter informing your neighbor of what you are going to do?  It may not be necessary, but you may find it advisable.  You know, being neighborly.

If you are the bad guy in the dispute and you’ve done a naughty deed, the best advice is to keep quiet.  If injury or wrongful death resulted, respond to all inquiries by directing them to contact your attorney.  Let an attorney do your talking.  You will only make matters worse by attempting to explain your position.  Worse, not better.  Your day will come when your side of the story is told.  But not to your neighbor or anyone else.  Just keep quiet.  Be respectful and courteous.  Be nice.  Be neighborly.

What if the tree was dead when it fell onto your neighbor’s home, car, or property?  Well, you’ve got a problem.  A big problem.  But if the tree was alive when it failed, then not so much.  Get a qualified arborist out to examine the tree ASAP.  They must not trespass, but they can most certainly diagnose the reason for failure from your side of the fence.  And they can take pictures for you.  Make certain you ask for copies.

Yep, it’s time to call an attorney.  It’s funny how everybody hates attorneys until they need one.  This will not be as easy as it sounds.

If the failed tree caused a personal injury or, even worse, a death, finding an attorney to represent you should be relatively easy.  However, if the matter is a squabble, finding an attorney can be challenging because they often prioritize their time and resources on cases that, compared to yours, promise far better financial results for their bottom line.  Yes, it is about money.  In cases regarding the removal of a tree at risk for failure, your chances of retaining an attorney increase exponentially.

There is always mediation as an approach to resolution.  And depending on the amount of money involved in the matter, you can represent yourself in small claims court.  As the familiar adage says, “He who represents himself has a fool for a client.” Nonetheless, it may be your only option, and courts are sympathetic to those who represent themselves without the prerequisite legal training.

So be prepared.  Did you bring your written diary?  Did you bring your pictures?  Do you have proof in writing that you attempted to resolve this matter in a neighborly fashion?  Were the letters you sent registered mail with the return receipt requested?  If you just sent the letter by regular carrier or registered mail, but you do not have a signature or proof that it was received, you can bet the farm that the person across from you will claim he never received it.

Please note: The author is not qualified to give legal advice.  Nothing in this article represents legal advice.  If you need legal advice, please consult an attorney.

Joe is entering his 58th year of practice in the fields of arboriculture and horticulture.  He is a recognized expert witness in small claims, civil, criminal, eminent domain, and federal courts of law.  His representation of plaintiff/defendant is 50-50.

When you need a credentialed arborist in support of your case, reach out for assistance!

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