April 1, 2022 • By Dennis Beaver
“Often homeowners and commercial property owners do not understand the importance of maintaining vegetation — primarily trees — and this is especially important if they have neighbors whose homes or offices could be damaged by falling branches or the trees themselves,” observes La Jolla attorney Evan Walker, whose law practice concentrates on property damage and personal injury.
“Often, when buying a house, the last thing considered is the added cost of yard maintenance. With the price of homes off the charts, few real estate agents will tell buyers, ‘And don’t forget that you will need to maintain these trees and the yearly costs will be significant.’
And how significant is significant?
“Depending upon the size of the property, number and types of trees, and proximity to adjoining homes or other structures, the yearly or bi-yearly expense of hiring tree trimmers can run into the thousands of dollars, but that’s often not the more critical problem,” Walker points out.
“It is liability. Negligently failing to maintain your trees in a safe condition invites litigation when, as a direct result of this negligence or willful behavior, property damage, personal injury or death result,” he underscores.
Most lawyers recall cases discussed in law school under the heading, “Owners and Occupiers of Land,” where jury awards have been through the roof when it was shown that the owners had actual notice of the danger their trees posed to neighbors but chose to ignore it.
When Your Neighbors are Misers
This column has heard from so many readers over the years who live in fear of their neighbor’s trees falling. Most had already hired state certified arborists whose reports warned of an imminent danger of major property damage or injury certain to occur, and a copy of the report given to the neighbor.
Often I phoned these people, urging them to do the right thing and have the trees trimmed or removed, only to hear “No! I’m not paying for it and don’t care what the arborist says. Tell your reader to pay for the job!”
In several instances, within days, what was predicted to happen did. Resulting litigation frequently revealed these people to have the word miser stamped on their foreheads, yards overgrown with vegetation, home in a state of disrepair and bank accounts flush with thousands of dollars.
I have also found some of my readers to be just as miserly as their cheapskate neighbor, as an email from a New Jersey reader made clear.
“My name is Michele. I have dead trees right behind my fence and am being ignored by the owners. I need help and am at the point I don’t know where to turn. I’m not getting much help from my Township. Can you help me?”
So, I phoned Michele and learned:
(1) She has a report from an arborist warning, “These trees are as tall as a phone pole and are an imminent threat of falling on her house.”
(2) The neighbor was given a copy of the report, initially promised to have the trees removed, and then refused.
(3) It will cost $1,700 for the job.
(4) Her local government officials have turned a blind eye.
(5) Her source of income? “I am extremely comfortable with dividends from my investments.”
(6) Has she consulted with an attorney for a letter demanding that the dangerous condition be immediately remedied or suit will follow? “No, they charge too much!”
Evan’s Recommendations
“If it were me, I would alert my city or county authorities, law enforcement, code enforcement and elected representative. As it is a human interest story, local television and newspaper should be notified. Also, my own homeowner’s insurance company, putting them on notice of this potential claim as that is my obligation under the policy.”
When Michele told me that a consultation with a lawyer costs too much — in view of her clearly admitting having the financial means and obvious need for legal help — I said:
“You are being unreasonable, unfair to yourself and are exposing friends and family who visit you to a known risk of injury – and then you would be sued!
“Receiving your lawyer’s letter, these cheapskate neighbors will realize that you have the ability to drag them into court, I would expect them to react in a very different way, so after we speak, schedule a consultation with an attorney, please!
Necessity
I asked Evan, “What if, out of a reasonable fear the trees were on the verge of falling, Michele hires tree trimmers and without permission they enter the property, rendering the situation safe and they sue her for trespass. What would her defense be?”
“Her lawyer would raise the Defense of Necessity, explaining to a judge or jury that the law of trespass recognizes times when, to preserve the greater good, it is permissible — in fact necessary — to trespass. We call this an affirmative defense which says, “Yes, I did trespass but was justified in doing so as this was an emergency.”
Evan concluded our interview with two sayings, one 500 years old and from England — “Do not be penny wise and pound foolish.” — and the other credited to Benjamin Franklin:
“An ounce of prevention is worth a pound of cure.”
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.