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Lucy, Esq.
Lucy, Esq., Attorney
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How can I find out who is responsible for damage done by a

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How can I find out who is responsible for damage done by a fallen tree which seems to be on the easement on the other side of my 8 foot fence. on the other side if my property, which is where the tree was belongs to a shopping center, In other words,l who owns the tree?
Submitted: 2 years ago.
Category: Legal
Expert:  Lucy, Esq. replied 2 years ago.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear that this happened.

We have recently implemented a new payment and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not whether the answer supports your legal position. If you have any questions at all, or there is anything I can clarify for you, please bypass the rating system and click “Continue the Conversation” or "Reply". Choosing either of the lowest two options reflects poorly on me (and not the law), so please reply to me if there is anything I can do to help before choosing those options. I appreciate your patience while we work out the kinks.

If it was an "act of God," then the property owner did not do anything wrong and therefore is not responsible. An act of God usually refers to things like tornadoes or hurricanes, but can also include any situation where an apparently healthy tree falls. The property owner is only liable if there is evidence that the owner knew, or should have known, that the tree was sick or broken and therefore presented a danger of falling over.

The fact that there's an easement further complicates matters. Typically, the party that uses the easement is responsible for the upkeep, if he's the one that uses it. So, if the tree was actually on the easement, the holder of the easement is liable, unless the actual recorded deed says otherwise. Also, if the easement is used by the property owner and the easement holder, both would be responsible.
Customer: replied 2 years ago.
I have informed the shopping center numerous times that the trees were either dead or rotten, especially after the hurricaine IKE and suggested that they cut them down prior to them doing any damage. They have ignored this suggestion. In fact, there are still other trees that are sickly there.. How do I know who is the holder of the easement. My property survey shows that it is a utillity easement, however when I called the electric company, they stated that it was not their tree, and it was the responsibility of the owner of the tree. How do I know who owns the tree?
Expert:  Lucy, Esq. replied 2 years ago.
Easements have to be recorded with the registry of deeds to be valid. Many counties now make these documents available online - if you pulled all records associated with that particular property, you would see it. If the easement is only for utilities, though, that's a little different. The utility company probably has the right to trim the trees as necessary, but is not liable for maintaining the property. A utility easement isn't the same as an easement for ingress/egress.

If the owner of the shopping center is refusing to pay, you can file suit against them. You didn't say how much the fence replacement will cost, or where you live, but you may be able to bring suit in Small Claims Court. Because it's a shopping center, the property may be owned by a corporation, so you'll want to check the property records to get the name of the owner of record. That way, you can be sure that you're suing the right party and avoid having the case dismissed on a technicality.
Customer: replied 2 years ago.

if the tree is on the utilty easement and damages our property, who is responsible for the damage?

Expert:  Lucy, Esq. replied 2 years ago.
If the property owner was on notice that the tree was damaged and presented a danger, the property owner is usually liable, but you may want to look at the easement to be sure. You can get the easement from the local County Recorder's Office Registry of Deeds, which may have a website.
Customer: replied 2 years ago.
I am not sure of what you mean by the owner of the easement. My deed survey shows that it is a utililty easement. When this happened, I called the electric company, and they said they did not own the tree. I am very confused as to how to learn who owns the easement and the tree.
Expert:  Lucy, Esq. replied 2 years ago.
No one "owns" an easement. The person who benefits from an easement is called the "holder" of the easement. However, again, this is a utility easement, which is different. I apologize, because I feel as thought I've confused you. If you had mentioned originally that it was a utility easement, I would have told you that the property owner is the person responsible for repairing your fence, because they knew the fence presented a danger and did nothing to avoid an issue.
Customer: replied 2 years ago.
I thought I did tell you in my reply of July 1 that it is a utility easement. Again I am confused. You state that the property owner is the person responsible for repairing my fence, but which property owner is the "holder "of the easement, and is the "holder" of the easement the one responsible? The electric company stated that they only trim the portion of the tree that is touching the electric wires. I even suggested that they cut the sick trees down and they said they do not do this. I think you meant that the shopping center knew that the trees presented a danger and did nothing, is that right? I am so confused now as to where get the information I need to present to the shopping center owner, so that they will understand that they are responsible for the repairs to my fence, if in fact they are. If they are not, I am still not certain how to find out who is.
Customer: replied 2 years ago.
did you not receive my question dated 7-3-12 at 5:23 pm?
Expert:  Lucy, Esq. replied 2 years ago.
I apologize for the confusion. I was away yesterday for the holiday.

Forget the easement. The property owner is liable if he knew that tree was damaged, and you already said you told them. The property owner owns the trees.
Lucy, Esq., Attorney
Category: Legal
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Customer: replied 2 years ago.
Would then my deed survey which shows my property line and also shows that miserable "easement" be enough to prove that their side of the fence in on THEIR PROPERTY. I don't mean to harp on the easement thing, but I don't want to push the issue and file a claim possibly in small claims court unless I am positive that I am in the right and that it is their liability to pay for fixing the damage to my fence properly.
Expert:  Lucy, Esq. replied 2 years ago.
You need a copy of the deed for the property where the tree is located, to show who owns that piece of property. If you have a survey showing where your property line ends and their's begins, that would also be helpful. But just a survey won't give the name of the owner of the tree, so if they're going to give you a hard time, you need that. If the easement is just for utilities, and all it does is allow the company to enter, maintain the lines, and cut trees when they're in the way, the utility company doesn't have any other responsibility. So, it really is the property owner's responsibility to maintain and/or remove the tree before it falls on someone's fence. If they didn't do that, they have to pay.
Customer: replied 2 years ago.
ok, where might I be able to get a copy of the deed for their property?
Expert:  Lucy, Esq. replied 2 years ago.
Real estate records are public records. You can get them from the County Recorder or Registry of Deeds in your area. You didn't say which state you live in, but some states have those documents online, so you may want to start there.
Customer: replied 2 years ago.
I am in Houston, Texas. Where would I search to see if I can get this online?
Expert:  Lucy, Esq. replied 2 years ago.
It looks like Houston is in Harris County? You should be able to get records here.
http://www.hcad.org/records/default.asp
Customer: replied 2 years ago.
I went to that website. but did not see anywhere to see a survey of that property. It shows the address as 9750 Fondren, Houston, Texas 77071 which is correct, but I wouldn't know where to find a copy of the property survey. Any suggestions?
Expert:  Lucy, Esq. replied 2 years ago.
If you want a full survey, you would pay a surveyor. That really shouldn't be necessary, though. You're making the process far too complicated. All you, as the injured party, need to do is file suit against the property owner, as named on the deed for that property. The deed should be on that website, or you can call the county to see if they will send it to you (there may be a few). Otherwise, go down to the address on that website. If there is some legal reason that anyone other than the property owner is liable for a tree on that property, he will have to assert it as a defense and identify that party. Even then, you could amend the Complaint. You don't need property surveys. You can just go to Small Claims court, get the forms, and file them.

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