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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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We live in New Jersy and from what I have read NJ has specific

Resolved Question:

We live in New Jersy and from what I have read NJ has specific laws when it comes to trees regulations. Our neighbor has a large tree with dead branches on it that should any of them fall will cause damage to our property and possibly our expensive automatic pool cover.
My husband mentioned it to one of the home owners and she said they would take care of it but to date they haven't.

From what I have read, should the branch fall and cause damage to anything in our property and we have informed them verbally and will also do so by certified mail, it then becomes their legal responsibility. Correct? Can you please answer my question and tell me if there is a statue or something that I can send to them with the certified letter I will be sending?

Thank you,

Pamela
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. Indeed, this is a textbook case of "neighbor tree issue." Every state has a slightly different take on it. NJ is the following.

Burke v. Briggs, 571 A. 2d 296 - NJ: Appellate Div. 1990 comes to mind - "This case deals with the standard to be applied to determine liability of a landowner for a tree which falls from his property onto his neighbor's property for no apparent reason."

The Court discusses the matter from all angles and then settles for a rather generic decision:

"In these circumstances the focus should be solely on one's duty of reasonable care which may shift, depending on the changing factors previously noted."

What does this mean? Well, it means that the neighbor is responsible for their tree's crossing into your territory, if they knew or should have know that this would happen and did not undertake reasonable care to avoid it:

"the defendant landowner had planted a tree near the property line and could be charged with knowledge that the roots inevitably would grow onto his neighbor's property. The roots then surreptitiously caused damage over a period of years..."

The same analysis applies to branch as well.

Ergo:

From what I have read, should the branch fall and cause damage to anything in our property and we have informed them verbally and will also do so by certified mail, it then becomes their legal responsibility. Correct?

Yes.

Can you please answer my question and tell me if there is a statue or something that I can send to them with the certified letter I will be sending?

The case above should do it. Also, please let me know if you need a sample of this letter by pressing REPLY. I would be glad to provide it!

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

Yes, I want a copy, but please fix your grammar first. You wrote should have know instead of should have known.


 


Thank you,


 


Pamela

Expert:  Ely replied 1 year ago.
P,

Oops, I am sorry about that! My grammar and spelling is normally impeccable. I try to type fast to ensure a quick delivery, so sometimes letters get left off. I assure you the sample letter shall not have any such issues. Please, allow me a second to provide said letter...
Customer: replied 1 year ago.

That's fine. I will wait for the corrected copy.

Expert:  Ely replied 1 year ago.
Again, this is purely a sample:

Dear ___________,

This correspondence is in regards XXXXX XXXXX tree, located at (description of site) between my property of ___ and your property of ___.

Please note that your tree has several dead branches on it that will - any day now - fall over unto our property, causing damage. Under Burke v. Briggs, 571 A. 2d 296 - NJ: Appellate Div. 1990, the owner who knew or should have known of such an issue has to take reasonable care to ensure that the tree is taken care of.

As such, you are hereby notified of said issue. If you do not correct this matter and the branches do cause damage, please note that you may be liable for (1) negligence, (2) civil trespass, and (3) nuisance due to the falling branches and debris. Weinberg v. Dinger, 524 A. 2d 366 - NJ: Supreme Court 1987; Nappe v. Anschelewitz, Barr, Ansell & Bonello, 477 A. 2d 1224 - NJ: Supreme Court 1984; Sans v. Ramsey Golf & Country Club, Inc., 149 A. 2d 599 - NJ: Supreme Court 1959.

Thank you in advance for your prompt attention to this matter.

Sincerely,

Signature

Name


I hope this helps and clarifies. Best of luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.

Customer: replied 1 year ago.

Ely,


 


Can I ask you another tree question?


 


Pamela

Expert:  Ely replied 1 year ago.
Pamela,

By all means - this is why I am here. Ask away, please.
Customer: replied 1 year ago.


Hi Ely,


 


Same neighbor. When we had the storm back in November one of their trees fell on our fence and that portion of fence needs to be replaced. The woman told my husband that they would take care of it. We have a pool and I told my husband to go over there and find out what's going on. Well, her husband said, "that's your responsibility". Mind you my husband is a physician and was the first one over there, after the storm, to make sure they were okay since a tree went through their roof. So much for kindness. Any way, I called our home owners insurance, which is out of Pennsylvania, and has different laws when it pertains to tree damage.


They told me it was their responsibility, but from what I've been able to read online it seems to be our responsibilty. I am not going to file a claim because our deductible is more than it would cost us to fix the fence.


I just want to know whose responsibility it is, theirs or ours. If it is ours you would think they would offer to split it with us, but so far they have not.


Thanks for your help,


 


Pamela

Expert:  Ely replied 1 year ago.
Hello friend,

I am sorry for your continuous situation with the same individuals. Likely, you have handled it with more tact and grace than I would have!

No, it is the neighbor's responsibility. This falls unto the same legal doctrine that we spoke of before:

1) Under Burke v. Briggs, 571 A. 2d 296 - NJ: Appellate Div. 1990, the owner who knew or should have known of such an issue or whose tree damages the property has to take reasonable care avoid the damage, or is liable for it if it occurs.

2) If they fail to secure the tree, then they are liable for negligence. In order to sustain a common law cause of action in negligence, a plaintiff must prove four core elements: 1) [a] duty of care, (2)[a] breach of [that] duty, (3) proximate cause, and (4) actual damages. Polzo v. County of Essex, 960 A. 2d 375 - NJ: Supreme Court 2008.

No matter how they spin it, it is the neighbor's responsibility to secure the tree, or be responsible for the outcome if it damages anything. if they refuse to pay, you can technically take them to Court if you wish to.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

If the tree was supposedly a healthy tree and fell only due to the storm isn't that " an act of god" and they had no control over it?


 


Thanks.

Expert:  Ely replied 1 year ago.
Pamela,

Ah, I see - it was a different tree. Okay, let me amend that.

If this was an Act of God, the neighbor may not be liable. Samuel Sheitelman, Inc. v. Hoffman, 255 A. 2d 807 - NJ: Appellate Div. 1969.

But I was going off the fact that the tree has dead limbs - this being another tree changes everything. Now if the tree that we are discussing now that was torn out was healthy, then, they may not be liable, indeed, if they did do everything that they reasonably could to avoid the tree being torn out. However, it really becomes subjective. Did they do everything they could?

So then, it is a toss up.

Healthy tree - may or may not have a defense under Act of God.

Unhealthy tree - likely liable.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87606
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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