Who is responsible for tree damage (neighbors tree) (1 Viewer)

[LKN H20Girl]

Hmmm... so all those planes flying over my house are actually trespassing. What is the going rate for renting airspace to commercial airlines?

Ask the woman who owns the sun.

 

[sykobob671]

The information you have been given is correct.
It is always best to discuss the matter with the homeowner
if possible to explain the dangers and your course of action.
If the tree poses some real risk you can have the courts make them remove it if they refuse, and most do because of the cost and loss of aesthetics.

Landmark case involving trees and neighbors happened in California
not long ago. Neighbor was forced to cut down trees because they interfered with
neighbors solar panels.

http://www.newser.com/story/22611/solar-panels-trump-trees.html

Safety concerns are much more cut and dry when and if the courts are involved.

 

[bozoka45]

Hmmm... so all those planes flying over my house are actually trespassing. What is the going rate for renting airspace to commercial airlines?

Nah. FAA has said anything over 1,000 feet is cool. So you may be able to get those low flying planes.

 

[dtc]

yeah, you should make every effort to notify them even if it means a registered letter.

Ask them to remedy the situation with a reasonable deadline. Be courteous.
If they don't respond or comply, then you can cut it back as long as you don't go on their property.

Dear Neighbor,

Your beautiful trees seem to be having some troubles which would require attention from an arborist or tree surgeon as heavy branches are dying and falling off. Please understand that the overhanging limbs that appear ready to fall are endangering my house and property, as well as, the people thereon.

I ask that you please address the dangerous issue at your earliest convenience as my insurance company has noted it and is requiring removal of the hazard by (somedate less than 30 days from the date of your letter.)


Sincerely,

antitreedood...



If they don't respond within 2 weeks, send them another certified letter informing them that you are going to address the problem at your own expense and send them the bill, but call code enforcement first to see if they can help before you trespass. FYI, you should have the right to be on their property for the purpose of maintaining and protecting your own as long as you don't cause any harm.

 

[St. Widge]

This is a similar problem to something I'm going through right now. Three HUGE water oaks are on my neighbor's property. They are clearly on his property but the heavy and prone to falling branches tower over my roof top and car port.

Here's what I've been told: The property line goes up to infinity. If the trees over hang on your property, you can trim them to the property line - without their consent.

If the tree falls on your house, your homeowners insurance will cover it, unless they have been informed of the issue and ignored a potential issue.

The best way to address it is to send them a registered letter stating your concerns and asking for some cooperative resolution. It's mostly a legal CYA in the event the tree damages your property as you will be covered under your policy, but obviously all deductibles will come out of your pocket.

This is pretty much spot on. There used to be pure strict liability in LA for premises liability, but that changed 10 or so years ago and now for the premises owner to be liable you have to prove that they "knew or should have known" of the defect in the property. (That's one interpretation of the law. It is still called strict liability, but some legal scholars and courts say that it really is just a negligence standard.)

In this case the question is whether they knew the tree was defective or diseased (assuming it is of course.) In court, it ususally comes down to a tree expert to say if the tree had a defect and then the question becomes did the property owner know about the defect. So, assuming you can show the tree had a defect, you still need to show that the property owner knew about it. A very specific letter sent certified mail would serve as evidence that the property owner had knowledge of the defect, but it would be up to the trier of fact to decide if the evidence was enough to show knowledge of the defect on the part of the property owner. Of course, you also have an obligation to mitigate your damages so arguably if you know about the branches hanging over your property and do nothing about it, the owner would not be liable for that.

Anyway, sending a very specific letter by certified mail is a good idea for evidentiary reasons. I can't imagine why you would also want to get it notorized. All having the letter notorized would do is verify that you signed the letter and the issue is whether they got the letter, not if you actually signed it. I guess you could send an affidavit giving the condition of the tree, but I can't see a point in that either.

Contacting your insurance company might be a good idea too. They might pay for a tree cutter to cut the branches over your property and they may get involved in getting the other land owner to correct the defect in his property and/or putting him on notice of the defect.

And, in the event, the property is eventually damaged you should report it to your insurance company and either get your own lawyer or have the insurance company pay for one.

 

[TheGooch]

Grow a pair...get out there with a big mccullen chainsaw and cut that sucka down

 

[primadox]

Ask the woman who owns the sun.

Beat me to it!

 

[superchuck500]

This is pretty much spot on. There used to be pure strict liability in LA for premises liability, but that changed 10 or so years ago and now for the premises owner to be liable you have to prove that they "knew or should have known" of the defect in the property. (That's one interpretation of the law. It is still called strict liability, but some legal scholars and courts say that it really is just a negligence standard.)

In this case the question is whether they knew the tree was defective or diseased (assuming it is of course.) In court, it ususally comes down to a tree expert to say if the tree had a defect and then the question becomes did the property owner know about the defect. So, assuming you can show the tree had a defect, you still need to show that the property owner knew about it. A very specific letter sent certified mail would serve as evidence that the property owner had knowledge of the defect, but it would be up to the trier of fact to decide if the evidence was enough to show knowledge of the defect on the part of the property owner. Of course, you also have an obligation to mitigate your damages so arguably if you know about the branches hanging over your property and do nothing about it, the owner would not be liable for that.

Anyway, sending a very specific letter by certified mail is a good idea for evidentiary reasons. I can't imagine why you would also want to get it notorized. All having the letter notorized would do is verify that you signed the letter and the issue is whether they got the letter, not if you actually signed it. I guess you could send an affidavit giving the condition of the tree, but I can't see a point in that either.

Contacting your insurance company might be a good idea too. They might pay for a tree cutter to cut the branches over your property and they may get involved in getting the other land owner to correct the defect in his property and/or putting him on notice of the defect.

And, in the event, the property is eventually damaged you should report it to your insurance company and either get your own lawyer or have the insurance company pay for one.

Just to add to this, Louisiana has an express civil code article on it, La. C.C. Art. 688:

Art. 688. Branches or roots of trees, bushes, or plants on neighboring property

A landowner has the right to demand that the branches or roots of a neighbor's trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor.

A landowner does not have this right if the roots or branches do not interfere with the enjoyment of his property.

So if even if no damage has happened yet, the neighbor can still demand that owner of the land to which the tree trunk attaches trim the encroaching parts of the tree. (Some jurisdictions allow the neighbor to have the tree trimmed and demand that the owner pay for it as long as the charge is reasonable and the neighbor had already demanded it be trimmed and the owner ignored that demand).

As St. Widge said, it's good to send a letter asking that the tree be trimmed and indicating that you think it's a potential problem. This puts the owner on notice should something actually happen.

I don't totally agree that the owner has to be aware of some defect in this context. Yes, in general the modern rule is that an owner is only responsible for damage caused by a falling tree or branch if the tree was defective and the owner knew or should have known about it. The idea is that we don't have strict liability anymore and living trees should be encouraged, not cut down just because of potential liability. If a defect-free tree falls in a storm, oh well. But dead or defective trees should be a liability because of the unnecessary hazard they present. And if the owner had no reason to know that the tree had a particular defect, he isn't likely going to be responsible.

But I think this refers to the public in general and not necessarily to an adjacent landowner. Article 688 does arguably raise the duty of the tree owner to the neighbor somewhat, particularly if the neighbor had asked before the damage that the encroaching tree parts be trimmed. The Second Circuit put it this way:

Once the tree's branches encroached upon a neighboring tract, the defendants were charged with the knowledge that the tree's debris might cause damage or otherwise interfere with the enjoyment of the neighboring tract for which they would be responsible. Because of the foreseeable risk for the falling of large branches upon the neighboring tract and the existing duty under Article 688, the trial court could conclude in this case that "in the exercise of reasonable care" the Williams should have learned of the greater danger posed by the tree's hidden defect prior to this storm.

Brown, 850 So. 2d. 1116.

Anyway, yes, send a letter stating that you're growing concerned about these falling branches and demand that they be cut pursuant to Art. 688. Document when they fall even if they don't damage anything.