Yet another tree related question...sorry

What is the name of your state?What is the name of your state? New York

I know this is a topic that arises way too often, but my situation has a slight twist, and I am not sure if it matters.

Our neighbor, who has been a constant pain since we lived here, having had as many as 23 people living in their single family home, approached us in October and demanded (not asked) we trim branches from a tree on our property that has branches which overhang his roof. I read many posts here, and based on the repeated advice, I told my neighbor that he was free to trim any branches on his side of the property line, but I was not obligated to pay.

Today, I received a letter from an attorney for my neighbor who wrote that I am correct in stating I am not obligated to pay to trim branches that overhang my neighbors property, but these branches are now touching their roof, and causing damage (I don' see any damage), and since "my" tree is causing damage, I now need to pay to trim the trees.

This letter confuses me, since the attorney seems to be saying I am not responsible for cutting the tree on my neighbors side of the property, yet, since my neighbor neglected the trimming of these branches, and they are now hitting his house, it has beome my probelm and financial burden.

This doesn't make sense. Is their any ring of truth to what I am being told? Does the fact the branches have grown long enough to cause a problem change the law on these types of issues?

I just wanted to add that the tree is healthy, and upon closer inspection, there are two very small branches that may be brushing their house on windy days...something they could easily remedy with a pair of scissors!!!

Thanks in advance for any thoughts, and once again...sorry to bring up such a frequently visited topic.

Yet another tree related question....sorry

I'm just a laywoman, but I'd take pictures of the tree an where he thinks its damaging his roof first off. Then tell him to go suck wind. He can't sue you for something he, himself has created or allowed, the so called damages, to take place on his roof. Tell him to go and trim his own problems, lol.

ms.magoo said:

I'm just a laywoman, but I'd take pictures of the tree an where he thinks its damaging his roof first off. Then tell him to go suck wind. He can't sue you for something he, himself has created or allowed, the so called damages, to take place on his roof. Tell him to go and trim his own problems, lol.

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My response:

I fully agree with your assessment of the letter, and of Ms.Magoo's suggestions. It's your neighbor's responsibility to mitigate his own perceived damages.

Also, tell the attorney that if you find the trimmings on your property after his client cuts the limbs, then he can expect to defend his client in court against allegations of trespass. Tell him, "two can play this game, pal."

IAAL

please read Am Jur 2d on adjoing lands, you can find this at most court house law libraries or colleges.

Private nusiances, if your trees roots threaten someones sewerlines you may be held liable. If your trees limbs threaten someones preoprty you may be held liable. Also, some one may be able to come one to your property to abate a nusiance created by your property under the theory of innocent tresspasser.

While the law is clear that a person may abate a nusiance to his or her property, one is not under a duty to resort to self help. They may avail them selves of the courts through injuctions, and orders to have the individual who causes a nusiance to abate it at at their cost.

Bill

bbear401 said:

please read Am Jur 2d on adjoing lands, you can find this at most court house law libraries or colleges.

Private nusiances, if your trees roots threaten someones sewerlines you may be held liable. If your trees limbs threaten someones preoprty you may be held liable. Also, some one may be able to come one to your property to abate a nusiance created by your property under the theory of innocent tresspasser.

While the law is clear that a person may abate a nusiance to his or her property, one is not under a duty to resort to self help. They may avail them selves of the courts through injuctions, and orders to have the individual who causes a nusiance to abate it at at their cost.

Bill

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So, if I am reading this correctly, my neighbor is under no obligation to mitigate their own damages? The only reason these branches could or may have caused damage is because they never trimmed them. I often go up on my roof to trim away such branches, but wouldn't dare go up on my neighbor's roof to do so. Do you think this is what my neighbor's attorney refers to when he wrote I "may be liable" for damages?

bbear401 said:

please read Am Jur 2d on adjoing lands, you can find this at most court house law libraries or colleges.

Private nusiances, if your trees roots threaten someones sewerlines you may be held liable. If your trees limbs threaten someones preoprty you may be held liable. Also, some one may be able to come one to your property to abate a nusiance created by your property under the theory of innocent tresspasser.

While the law is clear that a person may abate a nusiance to his or her property, one is not under a duty to resort to self help. They may avail them selves of the courts through injuctions, and orders to have the individual who causes a nusiance to abate it at at their cost.

Bill

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My response:

Bill, the law also requires present damages, not merely a speculation of damages; e.g., have the branches actually knocked down some roofing tiles?

If the neighbor perceives "potential damage" to his property, then it's up to the neighbor to mitigate against that potential - - not merely let the condition lie and continue until damages actually occur. The tree limbs, themselves, signal a warning of the implicit potential for damages.

Also, any potential legal action would surely be viewed as "de minumus non curat Lex" (the court does not take notice of trifling matters). Nature cannot necessarily be controlled, and tree limbs are notorious for being a part of nature. They grow.

IAAL

I AM ALWAYS LIABLE said:

My response:

Bill, the law also requires present damages, not merely a speculation of damages; e.g., have the branches actually knocked down some roofing tiles?

If the neighbor perceives "potential damage" to his property, then it's up to the neighbor to mitigate against that potential - - not merely let the condition lie and continue until damages actually occur. The tree limbs, themselves, signal a warning of the implicit potential for damages.

Also, any potential legal action would surely be viewed as "de minumus non curat Lex" (the court does not take notice of trifling matters). Nature cannot necessarily be controlled, and tree limbs are notorious for being a part of nature. They grow.

IAAL

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Thanks again...There is no sign of damage having already occurred, as far as I can tell...the concern seems to be that as the branches have grown over years and months, they are getting close to the house. They may cause damage, but it seems to me any such damage is the result of their failure to take steps to avoid the damage...ie: trim them things!

Thanks again to all who have replied...my education continues!

i would again disagree,,,,,Temporary restraining orders are for threats of harm,,imediate and irreperable harm.,,,,,,

Individuals are under a duty to mitagate damages, however it is up to them how to mitigate.

As the damage is now only threatened, potential and likely, One could argue that a resonable form of mitigation is to bring suit and injuction to have the nusiance removed.

However, in the alternative, if the tree is on the boundary, one could make an arguement that it is a border planting and thus belongs to both parties, whereas both parties would be responsible for its maintianance so long as it is damage withotu consent of the co-owner.

There also is case law, make a difference between natural growth trees and purposefully planted ornamental trees.

If it was me,,as in most decisions i have read,,,,sharing the costs would probably the most prudent course of action. even if i had to bear the cost of a tree trim,,,generally less than a few hundred dollars,,,is cheaper than court costs and an attorney.

Here is new yourk law,,,,damages only need to be threatned.

ARTICLE 63 New York

INJUNCTION


S 6301. Grounds for preliminary injunction and temporary restraining
order. A preliminary injunction may be granted in any action where it
appears that the defendant threatens or is about to do, or is doing or
procuring or suffering to be done, an act in violation of the
plaintiff`s rights respecting the subject of the action, and tending to
render the judgment ineffectual, or in any action where the plaintiff
has demanded and would be entitled to a judgment restraining the
defendant from the commission or continuance of an act, which, if
committed or continued during the pendency of the action, would produce
injury to the plaintiff. A temporary restraining order may be granted
pending a hearing for a preliminary injunction where it appears that
immediate and irreparable injury, loss or damage will result unless the
defendant is restrained before the hearing can be had.

ARTICLE 8 New york
WASTE AND OTHER ACTIONS AND RIGHTS OF ACTION FOR INJURY TO
REAL PROPERTY

S 841. Action for nuisance. An action for a nuisance may be maintained
in any case where such an action might have been maintained under the
laws in force immediately before the taking effect of article seventh of
title one of chapter fourteenth of the code of civil procedure as added
thereto by chapter one hundred seventy-eight of the laws of eighteen
hundred eighty. A person by whom the nuisance has been erected and a
person to whom the real property has been transferred may be joined as
defendants in such an action. A final judgment in favor of the plaintiff
may award him damages or direct the removal of the nuisance or both.
This section does not affect an action wherein the complaint demands
judgment for a sum of money only.


Bill

This is what happens when you have no idea how the legal system works.

An Injunction for WHAT?

hehe,,in injuction to prevent someone from maintaining a nusiance,,,

Lets say someone parked the car infront of your driveway repeatedly, you could restrain them from that behavior.

Lets say you live on a private road and someone places a fence across it, you can restrain and enjoin them from keeping it there as it constitutes a nusiance.

Like wise, the owner of a tree that is threating do to its health,,,location or other factors can be restrained from maitaining it.

Injunctions are to preserve the status quo and to protect individuals from threats of harm to themselves or their property.

bbear401 said:

hehe,,in injuction to prevent someone from maintaining a nusiance,,,

Lets say someone parked the car infront of your driveway repeatedly, you could restrain them from that behavior.

Lets say you live on a private road and someone places a fence across it, you can restrain and enjoin them from keeping it there as it constitutes a nusiance.

Like wise, the owner of a tree that is threating do to its health,,,location or other factors can be restrained from maitaining it.

Injunctions are to preserve the status quo and to protect individuals from threats of harm to themselves or their property.

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Do you have any idea how stupid you sound?

My response:

Apparently, Bill doesn't understand "nature", as opposed to his non-natural examples. How do you compare parking in front of someone's driveway to a growing tree? You can't.

IAAL

I AM ALWAYS LIABLE said:

My response:

Apparently, Bill doesn't understand "nature", as opposed to his non-natural examples. How do you compare parking in front of someone's driveway to a growing tree? You can't.

IAAL

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Unless you're driving an "Oak"mobile

Ey,,,

I can take the heat from you,,.

I got five bucks that if and when and since they have already received an attorneys letter,,,,they go for an injunction,,,,burden of proof is lower,,,,rules of evidence is relaxed,,and this has nothing to do with nature,,,trees are real property when attatched to the ground,,person property when cut. either way adjoing land owners have a duty to protect lands of a neighbor when it iis resonably forseable that damage may occur.

I see you all disagree,,maybe chester can let us all know how it worksout and how much he saved fighting. I really suggest for him to read the am. jurs i reffered to

Bill

My response:

Thanks for your contributions, Bill - - and, for showing us how someone can successfully write using Ebonics.

IAAL