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Ely
Ely, Counselor at Law
Category: Real Estate Law
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Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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My neighbor planted a row of Oleander 12 years ago before we

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My neighbor planted a row of Oleander 12 years ago before we bought our property. He said he planted them on his side of the property line but over the years the Oleander has expanded onto my property. He used to maintain the plants fairly well but now allows them to grow over 7 feet high and overhanging my property. He also does not control expanding roots and droppings blowing onto my side. Our dog became very ill last week after eating an Oleander blossom in our fences yard as witnessed by my wife. In just a few hours our dog developed vomiting and extreme internal inflamation and her organs began shutting down. After 6 days of intensive hospital care and $1100.00 she had to be uthanized. I have asked the neighbor to remove the Oleander so that we can feel safe for our health and feel safe to get another dog. He refuses to do anything to help stating (they haven't been a problem in 12 years). What remedies are available for us?
Submitted: 1 year ago.
Category: Real Estate Law
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 very sorry for your situation. The fact that they have been hanging over your property line for 12 years does not somehow 'grandfather' them in. The fact is, you can cut whatever is hanging over to your side of the property.

Arizona is very clear on this: "A landowner who sustains injury by the branches or roots of a tree or plant on adjoining land intruding into his domain, regardless of their non-poisonous character may, without notice, cut off the offending branches or roots at his property line." Rosa v. Oliveira, 115 R.I. 277, 342 A.2d 601 (1975); McCrann v. Town Planning & Zoning Commission of Town of Bloomfield, 161 Conn. 65, 282 A.2d 900 (1971); Drummond v. Franck, 252 Ala. 474, 41 So.2d 268 (1949); Jurgens v. Wiese, 151 Neb. 549, 38 N.W.2d 261 (1949); Griefield v. Gibraltar Fire & Marine Insurance Company, 199 Miss. 175, 24 So.2d 356 (1946); Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931); Gostina v. Ryland, 116 Wash. 228, 199 P. 298 (1921); Hickey v. Michigan Central Railroad Company, 96 Mich. 498, 55 N.W. 989 117*117 (1893); Whitesell v. Houlton, 2 Hawaii App. 365, 632 P.2d 1077 (1981); Ogle v. Trotter, 495 S.W.2d 558 (Tenn. App. 1973); Ferrara v. Metz, 49 Misc.2d 531, 267 N.Y.S.2d 823 (Sup.Ct. 1966); Bonde v. Bishop, 112 Cal. App.2d 1, 245 P.2d 617 (1952).

In other words, if the vegetation is trespassing unto your land, you may cut it off. Period.

In fact: "When some actual and sensible or substantial damage has been sustained, the injured landowner may maintain an action for the abatement of the nuisance." Mead v. Vincent, 199 Okla. 508, 187 P.2d 994 (1947); Gostina v. Ryland, supra; Fick v. Nilson, 98 Cal. App.2d 683, 220 P.2d 752 (1950); Luke v. Scott, 98 Ind. App. 15, 187 N.E. 63 (1933).

In short, you would be in every right to:

1) cut the vegetation on your side of the fence; and even
2) bill him for the reasonable cost if you had to retain someone to do this. One only has to make sure that the cutting is done with
3) minimal damage to whatever is left on his side.

This self-help remedy does not need court approval, but again, the cut must be on your side only, and, must be reasonable in scope and not negligently or maliciously damage the vegetation on his side. If the plants die due to you cutting them on your side, then, that is not your fault as you were simply exercising your rights, arguably.

I hope this helps and clarifies. Good luck.

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.

I neglected to to say that Oleander is considered the most poisonous plant in the USA! It is poisonous to humans as well as animals. Recently 3 cows died just outside of our community border because someone threw Oleander trimming on the ground where the cows graze. There have also been several pet deaths unknown to cause here in the last few years.


 


Does this change anything?

Expert:  Ely replied 1 year ago.
Friend,

Oh, wow. I did not know that. What is this person thinking?

Anyhow, this does not change your case at all, but only strengthens it, as no one can fault you for cutting a poisonous substance that one's neighbor has allowed to overgrow into one's yard, especially if the state'a doctrine allows you to do so in the first place.

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: Real Estate Law
Satisfied Customers: 86360
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
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