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socrateaser
socrateaser, Lawyer
Category: Legal
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Experience:  Retired (mostly)
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A large dead tree in our front yard is so close to the property

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A large dead tree in our front yard is so close to the property line that it can't be removed without stepping on the wooded lot next door. Also, there are several smaller trees, diseased or dead, along the property line. Some are on the neighbor's side, some on ours, and some right on the line. Last winter one of the small trees fell on our house. We showed the downed tree to our neighbor and obtained verbal permission to remove the others, all at our expense. His one condition was that he be present when the work is done. Today when we called to tell him that the tree crew will be here in two days, he denied ever speaking with us about it. He is elderly and may be senile. What can we do to resolve this situation? Waiting for him to die is not an option.
Hello,

To the extent that a tree is on your side of the property line you can remove it.
To the extent that the tree is on the property line, and it is dead or diseased, you can abate the trespass and nuisance.
To the extent that the tree is on the neighbor's side of the property line, you cannot remove it, unless the tree is in imminent danger of collapsing onto your property. This too, would be abatement of a nuisance.

This should give you sufficient grounds to remove the majority of trees, regardless of whether or not you have the neighbor's permission. You need to be able to demonstrate the nuisance to law enforcement should the sheriff arrive. And, you cannot continue to work if there is a serious risk of physicial altercation (breach of the peace), because that would give law enforcement authority to arrest you (and the neighbor).

So, you may want to have an arborist present to confirm that trees on the neighbor's side are in imminent danger of collapse.

Hope this helps.
Customer: replied 3 years ago.

Thank you so much for your response. I forgot to mention that my neighbor said he will put up "No Trespassing" signs before the tree service crew arrives. Also he is claiming (incorrectly) that the boundary is marked by a dog pen that we put up about a foot inside the property line. We will not be able to prove to a sheriff where the actual property line is because our lot is a very odd shape and one of the survey pins is missing/concealed by overgrowth. Do these facts change anything?


 


 

If the sheriff cannot determine the property boundaries, then the sheriff will back away and tell you both that this is a "civil matter," and you'll have to work out your differences in court. Law enforcement cannot enforce a criminal trespass claim without clear boundaries (which means surveyor marks). A sheriff's deputy is not a surveyor, and the sherrif won't hire one to resolve the dispute.

The no trespassing signs will not matter, because you can claim that all of the tress are on your side of the boundary line, and there will be no means of determining differently.

In the worst case, the sherrif would tell you that you can''t remove any of the trees, because no boundary is apparent. If that happens, then you will have to hire a surveyor to plainly mark the boundaries. Then you can remove the trees as I previously described, and/or sue the neighbor for damages and/or an injunction for the nuisance.

You can sue in small claims, without a lawyer, only for money, and only up to $5,000. If you win, that ought to be sufficient leverage to permit you to get the neighbor to remove the trees. If you sue in regular civil court, then you can get an order to remove the trees, but it could cost you a lot of legal expenses to do so. The neighbor would have similar expenses, which hopefully would stimulate a settlement.

The final recourse would be that if the neighbor shows signs of mental illness when the sheriff is present, then the sheriff may just take the neighbor into protective custody for observation -- or contact Adult Protective Services to determine if the neighbor needs to be placed in a nursing home.

Which would solve all your problems.

Those are the possibilities. Hope this helps.
socrateaser and 3 other Legal Specialists are ready to help you
Customer: replied 3 years ago.

Thank you so much. I feel prepared for whatever may come. Best wishes, Marie

Customer: replied 3 years ago.

Followup: Our neighbor was so impressed with the tree guys and all their equipment, he rolled over completely. Next time I have to deal with him I'm wearing a helmet, chaps, ear protection, and crampons. He gave the crew leader permission to take down all the dead/dying trees along the property line. I took photos of the trees in case he forgets, but there's no way he's going to pay for a survey. Good to know about abatement of a private nuisance. Thanks again.

It's nice to read of a happy ending. So many customers come to this website when there is no longer any hope.

Best wishes.
Customer: replied 3 years ago.

(:

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