DennisBeaverJune 1, 2018 • By Dennis Beaver

“Mr. Beaver, we live in rural Kings County and have been reading your column from the first day it appeared in the Hanford Sentinel, wondering if ever there would come a time when we would need your advice.

“Well, now is that time, and it’s all because of our next-door neighbors who inherited the house from their parents. Soon after moving in, their lack of respect for a lovely old home, its well-maintained yard and several tall eucalyptus trees which had always been carefully trimmed, became all too evident.

“The trees are in a straight row–leaning towards our property, with large branches coming over our fence, which is on the property line. We both have horses and corrals near the property line. When it is windy, the trees bend over, and we have been afraid that one will snap and crash down. To address this issue, we paid a licensed arborist who met with all of us and gave her opinion as to the danger presented by the eucalyptus trees.

“Her written report–which our neighbors have–stated that the trees are top-heavy, many show evidence of disease which weakens them, so that even a modest storm creates an imminent risk of splitting in two, crashing down on both of our homes and should be trimmed or removed immediately. Even though the dangerous trees are on their property, we offered to pay half to eliminate the risk, but they didn’t want to spend the money.

What should we do to protect ourselves? What if, when these misers are away, we send in a crew to remove or trim the diseased branches and trees? If there is property damage or someone is hurt, will their homeowners insurance handle the problem?

Liability based on negligence

We ran these facts by San Diego-based attorney Evan Walker who has had a great deal of experience with these types of cases. He began his analysis with an explanation of what is required to trigger insurance coverage:

“Homeowners Insurance is intended to compensate for property damage or injury caused by negligence. We all have a legal duty to not expose others to an unreasonable risk of harm by our actions or a failure to act.

“So, when the neighbors were informed of the danger their trees posed and refused to take corrective steps, that is negligence. Any foreseeable, preventable, injury or property damage would likely be seen as their fault and I would expect their homeowners insurance to handle the claim,” he points out.

Document! Avoid “He said – she said”

“One of the most difficult problems to overcome with these types of situations is proving negligence. The insurance company will want proof, or, if the whole thing wound up in court, you would have to establish that “the bad neighbors” knew or should have known their trees were dangerous,” Walker stated, adding, “And this is where you need to avoid a “He said – she said” situation, where everything is oral.

There have been neighbor disputes over trees which, “Ruin what should be an excellent relationship, where you are there for each other in tough times. Just as patching or replacing a leaky roof is required home maintenance, it’s no different with trees. To sleep without worries should not require a lawyer’s letter,” he feels, strongly.

So, if a kind word and being polite doesn’t work, what then?

“Document your concerns, and this can be with a text, email, or certified letter,” Walker underscores.

We have recommended that our readers put their cell phones to work, making videos and shooting photos which could become extremely valuable at some later time. Additionally, we’ve found this letter-template to be successful:

“Dear (neighbor) In the interest of being a good neighbor, I wanted to point out something on your property that is a potentially dangerous to both of our families; your (name of trees) appear (diseased, damaged, in danger of falling, be specific) and just in case you were not aware of it, I wanted to bring it to your attention.

Naturally, if there is anything we can do to help, please let me know, but this needs to be taken care of before someone is hurt by (explain.)”

If that “accident waiting to happen” ever does, you’ll have documentary evidence to support your position.

What not to do

As frustrating a miserly neighbor can be, “This is not the time to violate the law,” Walker makes clear.

“Do not trespass, or even dream of sending in your own crew to pull out those trees. Instead, consult an attorney. I cannot overly stress that every effort should be made to preserve a good relationship with your neighbors.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.