January 16, 2016 • By Dennis Beaver
‘In one of your recent articles the spokesman for State Farm insurance said something that applies to my situation,” Cheryl’s email began. He said ‘Being a good neighbor requires keeping tree branches and limbs in a safe condition to avoid damaging your home and your neighbor’s property.’
“The house next door is a rental owned by a lawyer here in Hanford. It has a huge, very tall, obviously diseased tree with limbs and branches that extend over — and even rest on — our roof! On both sides of our common fence, branches are in electrical and telephone wires, but not near the power company’s wires, so they will not trim them.
“The trunk is so large, that it is causing our common wood fence to lean, and its roots are damaging the foundation of our garage. Now, with El Niño, we are more worried than ever that a limb – or the entire tree — will come crashing down on our house!
“Three years ago it was bad, now it is terrible, and we have phoned and written the lawyer, begging that he do something, but he just repeats that it costs too much to remove the tree and he plans on selling the property.
“What can we do legally? What should we not do?”
Photos confirmed her description. This was clearly a dangerous situation, especially now with El Niño.
“Your reader’s situation is, unfortunately, common, and meets the legal requirement of a nuisance,” observes Los Angeles attorney Philip Nevinny, explaining that, “When something on your property – in this case, a tree – is permitted to substantially interfere with a neighbor’s use and enjoyment of their property, we call this a private (and sometimes public) nuisance.”
In his 25 years of law practice, Nevinny has, “far too often seen neighbors acting in an unneighborly manner with trees, either cutting them down illegally, or refusing to spend the money to keep their trees safe.
“It is mind-boggling how people who understand the legal consequences of refusing to address a dangerous condition on their property — and who have the financial ability to remedy it – become misers when it comes to the safety of their own families and neighbors who could be injured by falling trees or limbs,” he observes.
So, for Cheryl and other people facing the same danger from miserly neighbors, what can they legally do?
Before self-help — trimming limbs and roots herself — which might be legal but if done improperly, could land her in legal hot water — Nevinny provided guidelines which we feel are an excellent approach, beginning with communication and documentation of the nuisance. From overhanging limbs, encroaching tree roots, water flowing onto your property, late night, loud parties, whatever the nuisance, take date-stamped photos and videos.
Communicate! No matter how upset you are, remain polite. Perhaps your neighbors are unaware of the broken sprinkler head, or, they live in a different city and seldom see the property. If they are jerks, you’re becoming nasty will not help resolve the matter.
Check real property records to determine if there are any CC&R’s recorded against your property, which may grant you rights to (abate) correct a neighbor’s nuisance.
Send a polite letter which points out the problem, and ask for their help. No response? Send another, always remaining polite, because a judge or jury may read your letters.
Nothing happens? It’s now time to see an attorney. A letter from a lawyer to the neighbor should be professional and courteous, giving a fair statement of the facts, asking that they cease the activity.
The tone of your lawyer’s first letter should not be overly aggressive. But often more than one letter will be necessary, the final one making it clear what they are facing, with language such as:
“We wrote you, and nothing has changed. We are hoping to avoid filing suit; therefore please consider this our final demand that you cease and desist the conduct which has been earlier described. This is not a threat, rather, a statement of what you are forcing us to do if the conduct continues.”
“Taking matters into your own hands, Self Help, is risky and severe penalties are out there for the uninformed — so be careful,” Nevinny cautions.
With Cheryl’s permission, we phoned the attorney who owns the rental, asking, “What has prevented you from being a good neighbor?”
“Beaver, don’t mention my name, and I’ll remove the tree this week! Deal?”
Deal it was! Tree gone. Reader happy.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.