May 25, 2013 • By Dennis Beaver
“We are longtime Hanford readers and have a problem with our next door neighbors refusing to remove a dead tree which we have been advised will one day come crashing down on our house.
“The tree has been dead for quite a while, leans on our fence and is now pushing it over. It is at least 20 feet tall with a very large diameter trunk. We have been informed by an arborist that it is a clear and present danger — sufficiently heavy to cause major property damage, injury to occupants — and must be removed.
“We have repeatedly brought this to our neighbor’s attention, sending a polite letter, asking that they please remove the tree. Their response has been completely inadequate. Instead of hiring a tree service, they had a friend come over one day with a chain saw, cutting a few limbs and telling us that he ‘occasionally cuts down trees.’
“The only conclusion we can reach is that they do not care that their tree threatens our safety. We are extremely worried. Don’t they have a legal obligation of dealing with this? What can we do?”
Maintaining a nuisance has expensive legal consequences
“When you are on notice that one of your trees is in danger of falling — either on a neighbor’s property or into the street — there can be serious and extremely expensive legal consequences by failing to deal with the situation,” You and the Law was told by one of the nation’s leading experts in tree law, Northern California-based attorney and mediator Barri Kaplan Bonapart.
“As members of society, we all have a legal duty of not exposing others to an unreasonable risk of harm from the things we do on our property or, as is often the case with trees, from what we fail to do,” Bonapart notes.
“If you don’t maintain your trees in a safe condition and they create a risk of harm to neighbors, this becomes a private nuisance, which in law we define as an interference with the reasonable use and enjoyment of another person’s land.
“But, let’s say those same trees might fall into the street, striking cars or even pedestrians. Now, we have a public nuisance.
“In severe cases affecting the public at large, property owners can be prosecuted, as maintaining a public nuisance gives rise to civil liability and the possibility for criminal prosecution. In the normal situation, this kind of matter is private (not public) and, when there is an imminent threat to property or people, a court would likely order the tree owner to ‘abate the nuisance,’ which usually means removing the hazardous tree.”
A suggested approach to solve the problem
“The best and the right approach is the neighborly one, bringing the matter to the neighbor’s attention and documenting these efforts. Disputes like these are also often solved by mediation where, with the help of a mediator, the neighbors work together to find a mutually agreeable solution. If mediation does not resolve the problem, then a lawsuit is the usual next step. A court will be asked to order the tree to be removed and/or made safe as well as for damages.
“In the meantime, if property is damaged or someone is injured (or worse), the tree owner’s homeowners insurance might pay to resolve a claim — unless the carrier finds that their insured acted intentionally by failing to remedy the problem when they had the chance. This could mean a huge money judgment — all of it completely avoidable,” Bonapart points out.
“The worst-case scenario, of course, is that someone is permanently injured or killed. How do you ever compensate for that?”
Will local government help?
Depending upon city or county resources and the local codes, it’s a good idea to contact your code enforcement office. Hopefully they will send out someone — perhaps from the parks department — to evaluate the situation. Bonapart agrees, adding:
“If they believe the tree is a public nuisance, a citation could be issued requiring correction, and if they fail, the city will have it done and then likely file a lien against the property.”
Attorney and mediator Bonapart concluded our discussion with this important bit of philosophy: “We should all treat our neighbors as we would want to be treated. Being a good neighbor means doing not just the legally correct thing. It means doing what is morally right as well.”
You and the Law saw to it that the slow-to-act neighbors learned just how far out on a limb they were. “A tree service has been here to give them a bid,” our readers told us.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.