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Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 5542
Experience:  28 years of experience in general practice, real estate law and estate law.
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I am taking my neighbor to court next week over a dead tree

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I am taking my neighbor to court next week over a dead tree on her property that has fallen onto mine and caused damage to my fence. The tree fell in January 2013 and is still laying on my property with damage to my fence. I have tried numerous time knocking on her door when I knew she was at home with no response and also left two handwritten letters on her door about the situation and that she was responsible for damages. After several months of no response I contacted my insurance company which advised me to send her a certified letter. I sent the letter and she never signed for it and it was returned to me. I exhausted all my options with trying to discuss it with her; due to her avoidance I had no other choice than to take her to court. I am not sure if she has been served yet, but I want to have everything I need to make my case in court clear. I have my roomate as a witness to me attempting to contact her, the returned certified letter, pictures of the fallen dead pine tree and damage to chain link fence, estimates for tree removal and to fix the fence. I also have a copy of the land plot/layout that shows how many feet from the road my property goes to. When I purchased my home in 2008 I was told that the fence was my property line and I would assume it is common sense that people put up a fence on their property line, but I wasn't sure if she could say that it wasn't her property in court? There are several other standing very large pine trees still on her property that I was told by two different tree cutting services that they are negligent trees and it is not a matter of if they will fall, but when. One in particular when it falls could very easily cause extensive damage to my home. I plan on asking for court costs, cost for tree removal of fallen tree and to fix/replace the fence that is damaged. Are there any documents I am missing that will cause me to lose case? Can I ask for lost wages? thank-you
Hello and thank you for your question.

Does your survey showing that the fence is on your property line?
Customer: replied 3 years ago.

I didn't have a survey done, but when I purchased the property I was told the fence was on the property line; I have a paper showing the plot layout (like how many feet from the road my property goes to)

Customer: replied 3 years ago.

If she does try to say that the trees aren't on her property and i do not have a survey stating that the fence line is the property line, do you think the judge will automatically rule in her favor? I was just trying to avoid spending several hundred dollars for a survey, but at the same time i don't want to automatically lose just because I don't have that document. If I did get a survey done would that cost be allowed for me to ask for/reimbursed by neighbor in lawsuit?

Unfortunately the burden off proof is on the party bringing the suit and the price of the survey would not be recoverable in your damages.

If she challenges the property line it is possible that the judge will dismiss the suit.

I know that this was not the answer that you were hoping to receive. I apologize for being the bearer of bad news. I would like to see you prevail in this action and having a survey would show the necessary proof of the property lines.

Please feel free to ask me any additional questions that you may have with regard to this matter.

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Thank you.
Customer: replied 3 years ago.

I am getting a land survey and realize this amount I can not claim as damages along with my lost wages from having to miss work, however I was wondering if there would be anything else I could claim other than the cost to remove the tree and to repair the fence? Could I claim what I paid to send the certified letter that she never picked up? Or time spent attempting to contact her with no response, getting estimates for damages, etc? There were two other trees about a year ago that were hers that I paid to remove, but I don't have any receipts/proof. Also, now that she will be aware of the other negligent trees that like I said it is not a matter of "if" but "when" they will fall... do I have any control over getting those trees cut down as a preventative of future damage or claiming that against her since they are endangering my property? or would I have to wait until the trees actually fall to pursue damages?

You can charge her for the cost of removal of the tree and damage to the fence. You can add the additional costs and see if the judge will award them. If there is an issue with the other trees you can add that to your complaint. You would need to add removal of the trees to your complaint. Take pictures ti be able to show that the trees are an accident waiting to happen.
Customer: replied 3 years ago.

I called sessions court to see if the lady I am taking to court has been served (this was about two weeks ago when I filed). They told me she hadn't yet and that I needed to call the sheriffs office. When I called them they told me they had tried, but she didn't answer the door. I am irate! Can she legally avoid the police to be served and if so if she continues to avoid/not answer the door what can be done? The sheriff's office acted like there wasn't anything they could do. I have requested off this Tuesday for court and if she hasn't been served the judge will not hear the case, correct?

They can only do so much if she will not answer the door. You may want to check if service by certified mail would be considered effective.
You may want to involve the health department.

Customer: replied 3 years ago.

I had already tried sending a certified letter (explaining the situation/what my insurance company suggested) to her prior to taking her to court, but she would not pick it up or sign for it so it was sent back to me. So if she just continues to avoid being served this could go on forever without resolve? I thought the whole reason to pay the fees for court costs was because partially her having to be served? So if they fail to serve her will I get those fees back?

I am referring to sending the summons and complaint via certified mail.

I doubt they would refund the money but you never know until you inquire.

You may want to involve the health department.
Customer: replied 3 years ago.

I don't mean to come across as stupid... but what would the health department have to do with a case like this? Thank you for clarification on the certified summons :)

You stated that there are other trees that may fall, if the trees are diseased that could be a health department issue.

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