Real Estate Law
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Can I ask you a few questions:
1. Do any other neighbors have problems with this neighbor's trees? (for example, in a storm situation, do the limbs end up in your yard and the yard of a few other neighbors also?) Or, are the problems specifically happening to your yard? If other neighbors have problems with his trees, have they complained?
2. Are the trees damaged or dying? I note that you said that you have cut the limbs hanging over your property -- so I am wondering how limbs are still landing on your property and I am thinking that there may be something wrong with the tree itself.
3. You state that your insurer took him to court and lost. Do you remember what your neighbor's defense was?
1. Not that I know of. Because my property and my neighbor's are side by side and the neighbor's trees are very close to my property, the majority of the falling lands on my roof, carport roof (a long limb poke through the roof and came out under and barely missed one of my parked car). I am not aware of any other neighbors' complaining.
2. By the appearance alone to my untrained eyes, the trees are not dying. Closer examnination by an expert might reveal a different story. I just had big limbs that crossed the boundary line cut off with the neighbor's concurrence. But there remains a lot more branches and limbs far above the ones I had cut. And according to the direction of the wind, any branch can fall on my property. Also during heavy wet snow some more branch might fall on my parking lot, which happened once damaging my car windshield.
3. My insurer took my neighbor's insurer to arbitration (this is the best I can describe now). I can dig up related documents and send you more details what the arbitration court (?) replied to my insurer and how it was relayed to me.
Thank you very much Ms. Mary M. Esquire. Will look forward to your answer. If you need more information relating to item 3 above, please state so. Regardless, I will find the letter and relay to you as soon as I can.
Hello again. Thank you for the additional details -- it does help. You don't have to dig out the information -- I was curious because you stated that the insurer lost -- which makes me think that the arbitrator probably said "it's just trees being trees" .
Your only recourse at this point is to bring a civil action against the neighbor for "nuisance" --- that is the real property tort (tort is the legal term we use for a cause of action for which you can bring a civil lawsuit) that is used when there is a condition on the property of one neighbor that is causing property damage to the properties near the property causing the problems. However, given the results that the insurance company had, you might also get the same decision from an arbitrator or a judge unless you can show that there is something wrong with one or more of these trees and that they should be cut down. It might be worth having a tree expert come out to take a look at the trees -- the tree expert might have to get up close to the tree to examine it, so I suggest that you either get your neighbor's permission or you do it when your neighbor is not at home. If you can find something wrong, then my take is that you have a winnable case in court for the argument that the trees should be cut down. If there is nothing wrong with them, then your grounds for a lawsuit are not that great -- that is assuming that your neighbor lets you cut them back to the property line (I wish I could tell you something different, but I can't -- particularly where the insurance company already lost an argument against the trees). Regarding your insurer -- they can drop you after a few small claims and there is really nothing that you can do about it -- they have a right to insure or not insure whomever they want to. Because there is no law which tells an insurer who they must insure and how many claims they must handle before they discontinue coverage, you are basically at the mercy of their internal policies. You can file a complaint with the Virginia Insurance Commissioner against them if you want to -- they may not do anything for your individual claim but if they get enough complaints from consumers against any one particular company, they may investigate the company for dropping too many consumers without good causes.
Upon reviewing my files I have found property decision from the Arbitration Forums, Inc. In part, the document said in the What did the Applicant prove or fail to prove? section, "Applicant failed to prove that the limbs that damaged their property came from the trees owned by the Respondent. Appplicant failed to prove that the Respondent was negligent in maintaining his trees or they showed sign of decay." Under the section What evidence caused you to render this decision and why?, it said, "... Homeowner contends he had previous problems with falling trees of the Respondents and produced a letter he sent to him. This letter was sent more than 2 years before this loss and did not prove any collaborating evidence to suppor the allegations made. ... Respondent replied they were healthy and well maintained. ... hired a tree service to inspect and trim the trees ... photos ... green foliage and appear quite healthy. Respondent provided a weather report the date of this occurrence and gusting winds reached 47 (55) miles per hour."
My questions in preparation for the similar future occurrences are:
1. What can I do to prove that fallen branch branches are from my neighbor's trees? In many cases, I was able to match, visually, broken pieces to the remaining lims on trees, but my statements even accompanied by photos would not be sufficient. What else can I do? Should I contact my neighbor right away if both of us are at home at the moment and try to convince him to acknowledge to that fact? What if he does not cooperate?
2. Isn't it true even a healthy tree can be knocked down easily in unpredictable weather patterns of these days? Also, what if tree expert I hired differ in his opinion and judges the trees are not healthy. Whose opinion would the arbitration forum go by?
3. I don't quite understand what the wind factor proves favorably or unfavorably toward the case. Was the Respondent tried to prove if the wind was stronger, the more possibilities are there that the fallen branches were from further away, not necessarily from his?
Sorry, my questions and comments this time is somewhat lengthy. I will look forward to your thoughtful suggestions and ideas for the future protection of my property, lives of my family members and my insurance.
Hello. I apologize for the delay.
You will have to cobble together whatever proof you can that a court will find acceptable -- it is up to the court --photos and videos are usually admissible with date and time stamps on them.
The arbitrator or judge will go with whatever report they believe the most -- or they can order a third party report if they desire to do so and make the two of you split the cost.
The wind report on the insurance claim was to demonstrate that it was an act of God and had nothing to do with the neighbor's trees. It was actually pretty smart of them to use it. Expect the same types of arguments if any of your claims with him ever get to court.
Unfortunately, going to court over anything is not an absolute science. I wish it were.
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