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CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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So far I have two different antithetical opinions.....Does

Resolved Question:

So far I have two different antithetical opinions.....Does a neighbor have the right to cut tree roots on his property that kills my tree. I've been told that he is not liable under a new york state ruling involving the principle of "self-help abatement. Another opinion suggested limits to abatment on what I took is an act of unreasonableness.

Bamboo in my yard is likely to have "invaded" my neighbors yard although not certain its from our yard- but likely.

Under a new law/ordinace/etc. in the Town of Hempstead, bamboo can not be maintained. Town representatives gave us thirty days to remove all visiable signs of bamboo and we have cut it all down. We also informed our neighbor that we would continue to dig up all roots and make sure no roots would approach is yard. The Town has returned, inspected our property and found us in compliance with no future action necessary. WE are continuing to dig up roots and making sure no rhizomes emerge to eleminate the bamboo's opportunity to acquire energy through photosynthesis as per instructions from the National Bamboo Foundation. The neighbors were informed and have observed us working in our yard. WE had also agreed in principle to contribute to the cost of removing rhisomes from our neighbor's yard and establish a barrier if necessary on the basis that I get to see the estimate and the work proposal. My neighbor's have dug up their lawn and removed the bamboo rhizomes (maybe 5-12) and roots. They then went ahead without telling us and put up the barrier. In doing so, they severly cut our tree root right at the base of the trunk (the root was on their property) and they informed us the next day that our tree was dead and unstable.

My question I guess is whether they are liable perhaps because of unreasonableness or some other reason. Did they really need to erect a barrier since all the bamboo was gone from their property and they had good indications that we were actively engaged in correcting the problem. Is it reasonable to take such a severe action when they had no problem, only the possibility of a problem in the future (meaning another invasion), that may or may not occur.

They did not notify us about the barrier even though I specifically made that request and they did not consider erecting the barrier just one foot out further from the tree so that it would survive. They could have run the barrier agianst the property line all but for the last three feet and then boxed in the tree which is in the corner of their property.

An opinion would be appreciated.
Submitted: 4 years ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 4 years ago.

CalAttorney2 :

Dear Customer, thank you for choosing Just Answer. I would like to assist you today. I can provide you with my opinion regarding this matter, however, it may not be what you are hoping for with regards XXXXX XXXXX damage done to your tree. The invasion of tree roots onto someone else's property is a trespass, and the other property owner is allowed to remove the offending root (the same applies to tree limbs or other plants, rocks, fences, or other objects). You may however, have a town ordinance that protects trees (in my jurisdiction there is a strong ordinance protecting certain "heritage trees" or trees over a certain size that would subject your neighbor to significant penalties if this tree qualified under that ordinance. Your best option to see if your neighbor is liable to you for the destruction of your tree is to look into your local ordinance. Unfortunately, given the local nature of this matter, I am unable to do this type of statutory or ordinance research for you, but this is where I would look for a remedy (your town planner or even parks department may be able to give you the answer).

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