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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 100053
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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My neighbor uses my property everyday without my permission

Customer Question

My neighbor uses my property everyday without my permission entering and exiting her car and is refusing to let my contractors use her property to fix part of our siding. I told her endless times to get off our property and she stays off 2-3days and is back on again. I have called the police on her and they just tell her to get off. How can I go about this?
Also, she clogged one of our drains that is connected with the gutter close to her side and since then our basement floods.
We want to remove the 3ft fence that is in our yard between the two of us (the fence is on our property) and install 6ft but she has this HUGE tree that has roots hitting the side of our current fence and every contractor that we brought to give us an estimate said that the tree needs to be removed before they can remove the old fence and install a new one. The tree is on her property, but the roots have gone through our current fence because they are so big. I am located in NJ What can I do?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note:
(A) This is general information and is not legal advice. No specific course of action is proposed herein. No attorney-client relationship or privilege is formed by speaking to an expert on this site. This is repeated in numerous disclaimers throughout the site. By continuing, you confirm that you understand and agree to these terms; and (B) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
I am sorry to hear about this situation.
OVERVIEW
While is may be trespassing, this is a civil matter as long as she is being peaceful, and this is why the police do not get involved much. Someone in your situation may wish to threaten a civil lawsuit or actually file one, to get her to stop.
TRESPASS AND NUISANCE
To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.
Here, this may be for -
CIVIL TRESPASS - self explanatory;
NEGLIGENCE PER SE - trespassing illegally against statutory code;
PRIVATE NUISANCE - caused by the invasion of one's interest in the private use and enjoyment of land, when the invasion is intentional and unreasonable, or, unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities. Birchwood Lakes Colony Club v. Medford Lakes, 449 A. 2d 472 - NJ: Supreme Court 1982 (internal citations omitted).
The Court may order an injunction and damages, as well as legal fees.
Often, a cease and desist letter from an attorney demanding she stop is enough to have a neighbor stop, fearing litigation.
TREE
Whatever part of the tree is on one's property, one can chop off as needed, even if it means the tree will die. Provided one only takes off the tree parts/roots which are on one's side, and not the neighbors, then one has every right to do so. It is wise to be reasonable and not to chop off any more than needed. She cannot prevent work on your property. If she tries, this can be cause for even more action as explained above, and can be part of the suit.
I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please rate when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of the top three faces/stars and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating 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.
Customer: replied 1 year ago.
I can't take part of the tree root off it's massive. I would need to cut down the whole thing. Why do I have to pay to have it cut down if it's hers?She has stopped all work on my property how can I fight that?
Expert:  Ely replied 1 year ago.
I can't take part of the tree root off it's massive. I would need to cut down the whole thing. Why do I have to pay to have it cut down if it's hers?
Then I would go to Court asking for PERMISSION to cut from both sides. And, one is only responsible for whatever work is done on YOUR side. Even though the tree is hers, the part that is on your side is yours. Regardless, the Court will decide how to split the cost.
She has stopped all work on my property how can I fight that?
By threatening or filing that lawsuit as explained prior, with also a request for an injunction to stop her from interfering.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
She has weeds throughout her entire yard it requires a lot of work to install a new fence simply because her property is unmaintained. Why can't she be required to remove everything? 90% of the tree hovers over our property. We trim it every few months and it grows again. The roots are ridiculous! She should be ordered to take it down it isn't bothering her at all. However, it causes a tremendous amount of problems for us. A few leaves fall in her yard and that's it.
Expert:  Ely replied 1 year ago.
Please review my answer again. I had stated: "Then I would go to Court asking for PERMISSION to cut from both sides."
Generally speaking, the Court will allow removal of anything only on your property. However, if the tree simply cannot stand with whatever was cut from your property, and will rot, grow back, endanger, etc, then the Court may order it all be gone. The Court will order the cost split generally - by percent of whatever was on the parties' property apportioned to that neighbor. This is simply how the system is set up. But one has to go to Court to seek permission for the whole thing to be gone.
However, one can cut on one's side without permission from the Court.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
Would my home insurance be able to step in and cover the costs? Can I hire a lawyer through the home insurance? She clogged one of our drains that is close to her side of the property. Would she be responsible for that? She also parked her car on my side of the property and scraped my entire siding. Would she be responsible for that as well?
Expert:  Ely replied 1 year ago.
Would my home insurance be able to step in and cover the costs?
This depends on your coverage contract. They MAY cover your side of the property, but generally speaking, not your neighbor's site.
Can I hire a lawyer through the home insurance?
If the insurance provides coverage for this and covers legal fees, then yes. So this is on a case by case basis depending on the inurance.
She clogged one of our drains that is close to her side of the property. Would she be responsible for that?
Yes, possibly under nuisance/trespass causes of action.
She also parked her car on my side of the property and scraped my entire siding. Would she be responsible for that as well?
Yes, of course.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
Is it determined by where the roots, bark, or just how much of the branches are?
Expert:  Ely replied 1 year ago.
How far the tree physically extends is determined by where its roots/branches end.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
I don't understand?Majority of the roots are on her side, but branches are on ours?
Expert:  Ely replied 1 year ago.
Very simple:
Whatever roots/branches/trunk of the tree are on her side are HERS.
Whatever roots/branches/trunk of the tree are on your side are YOURS.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.