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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 34329
Experience:  16 years real estate, Realtor. Landlord 26 years
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I reside in the city of Maricopa, AZ (Rancho El Dorado Subdivision).

Customer Question

I reside in the city of Maricopa, AZ (Rancho El Dorado Subdivision). We recently (October of 2013) purchased a house with a pool. The neighbor to the west has 3 over grown trees (25+ feet) in a small yard (55' wide). One of the 3 trees has shedding flowers (as well as high overhead tree limbs encroaching our property) which shed 2 times a year. A good portion of the shedding ends up in our pool. During these 2 periods, our pool has to be cleaned minimally twice a day in order to enjoy our pool. We already had to replace 1 pool filter last year and worried than the shedding flowers will result in another replacement in the future. These trees are not only shedding in our yard, but 4 other yards. The tree trunk is fairly close to the brick partition fence and about 15 feet from our pool walls. Not sure were the roots a spreading to, but have fear that some time in the future, they may breech the pool wall. I sent a complaint letter in April of 2014 to the HOA and they said nothing could be done. The neighbor's house had a past purchased in the year 2009 as well as our house. At the time of purchase, our pool existed. At the time of purchase, the neighbor's house did not have any landscaping or trees in rear yard (I have MLS pictures for proof). The neighbor's house is a rental property, so it is difficult to discuss this issue. Is there a "nuisance" law pertaining to this issue and if so, can it be referenced? Any help will greatly be appreciated.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Barrister replied 1 year ago.
Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.
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There is not a specific statute that deals with "private nuisance" but it is well established under common law as well as caselaw in AZ. "Private nuisance" is one affecting a single individual or definite small number of persons in enjoyment of private rights not common to the public.
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The difference between a private nuisance and a public nuisance is generally one of degree. A private nuisance is one affecting a single individual or a definite small number of persons in the enjoyment of private rights not common to the public, while a public nuisance is one affecting the rights enjoyed by citizens as a part of the public. To constitute a public nuisance, the nuisance must affect a considerable number of people or an entire community or neighborhood. City of Phoenix v. Johnson, 51 Ariz. 115, 75 P.2d 30 (1938)
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A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.
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So if the neighbor's tree is causing an interference with your use and enjoyment of your property, then you can file suit against them and seek an order from a judge for them to abate the nuisance or pay you damages.
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thanks
Barrister
Customer: replied 1 year ago.
Trying to take the easy way before filing a suit. Considering I am located in a HOA with single family detached housing, do you think there may be some restrictions on what can be grown in the rear yard?
Expert:  Barrister replied 1 year ago.
There might be, and you can review your CCRs and Bylaws to see if there might be some restriction on "nuisance trees" that would prohibit them and give the HOA grounds to start fining the owner if they didn't remove them.
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If you didn't want to jump right to suing, you could have a local attorney send a "cease and desist" letter basically threatening to sue if they didn't abate the nuisance... Sometimes a letter from an attorney is all it takes to get them to realize that you mean business.
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thanks
Barrister

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