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socrateaser
socrateaser, Attorney
Category: Estate Law
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Experience:  Retired (mostly)
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My neighbor has two large ficus trees growing in their yard.

Resolved Question:

My neighbor has two large ficus trees growing in their yard. For the last two years I have had plumbers come to my home and remove our toilet due to tree roots invading the wax seal and allowing the seal to break causing water damage. The roots have traveled on the outside of the sewage pipe and have now entered the pipe. We have had to cut out the root on two separate occasions. My neighbor aggreed to have the tree cut down and now has had a change of heart. He states that I must provide proof that the roots are coming from his tree and that this must come from a certified arborist. He knows that I have provided the actual photos of the roots that where removed and an arborist gave an estimate of the cost of removal. Which is $475, $275 of this I offered to pay. I also provided him with the name and phone number of the arborist weeks ago. I did not hear from him for weeks. I have ask the help of Mediation but he has not responded. Should I contact a lawyer?
Submitted: 1 year ago.
Category: Estate Law
Expert:  socrateaser replied 1 year ago.
Hello,

You can sue the neighbor for nuisance, in an amount of up to $10,000 in small claims court, without a lawyer. If you can show that the roots are coming from trees located on a neighbor's property, then you can hold the neighbor liable for the continuing nuisance, and any consequential damages. See generally, FICK v. NILSON, 98 Cal.App.2d 683, 220 P.2d 752 (1950).

You could have an attorney write a demand letter for the damages, before you sue, but unless your damages substantially exceed $10,000, it's probably not worth the cost of the attorney's fees to use an attorney to litigate the matter on your behalf.

For a civil litigation attorney referral, should you need one, see this link.

Hope this helps.
Customer: replied 1 year ago.

My homeowners insurance paid over $4000 for water damage due to this problem and I paid over $600 in plumbing fees along with a $1000 deductible.Should I file in small claims court and go up against my neighbor who is an attorney, or should I hire an attorney even though damages, as of yet, do not exceed $10,000?

Expert:  socrateaser replied 1 year ago.
A nuisance complaint does not entitle you to recover prevailing party attorney's fees. So, if you hire a lawyer, you will bear the cost of litigation -- win or lose. If your opponent is a lawyer who engages in litigation routinely, then he/she may simply absorb the cost of litigation as a business expense, while you are paying out of pocket. And, I can practically guarantee that your legal expenses will exceed your current damages, which would leave you with a net award of $0 or less, no matter the result of the lawsuit.

Given all of the above, your best move may be to get a consult with local legal counsel as to how to present your case in small claims, and then try to "do-it-yourself."

Hope this helps.
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 34403
Experience: Retired (mostly)
socrateaser and other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you. Your information is quite helpful.

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