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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 111549
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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Our property backs up to a city easement. In April, a dead

Customer Question

Our property backs up to a city easement. In April, a dead tree on the city property was about to fall onto our property. My husband went to city hall to let them know that the tree was about to fall on out property. The did not come out that day to look at it. During the night, the tree did fall on property and into the screen enclosure on our pool. Part of the tree fell into the pool enclosure and pool, tearing two of the screens. We called the city again and someone did come out to look at. However, the city said that they could not remove the tree since it was on our property. We did hire someone to replace the screens and remove the tree. I was informed by the city that I would have to file a claim in order to see about being repaid. I did submit the claim (it was for 333.00)and finally received a response from thier Insurance Claims Rep indicating that the city was not negligent and would not be paying our claim due to Actual or Construtive notice...they determined that they did not have any prior history of problems at our location, nor could they have known of any problems. i should mentioned that we just purchased the property in January of the this year and moved in in February. Is it not the city's responsiblilty to maintain this easement and is there any recourse to thier denial that we can take?
thank you
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

It is the city's liability for a tree falling from their property only if you can prove they had notice of the defect. If you gave them the notice of that defect and they did not come out and fix the problem, they are liable. If they did not have reasonable notice of the defect to come out to cure the problem, then legally they are not liable. As far as easement maintenance, the owner of the land (the servient estate) is liable for maintenance of the easement unless the easement agreement states that the user of the easement (the dominant estate) is liable for maintenance.

You need to rely on the notice that your husband provided the city the day before that the tree was a hazard and it was their tree and it was in danger of falling and you can take the city to small claims court for the damages without an attorney.