Over the weekend, I received an email from a client who said her neighbor had a damaged tree that threatened her property, and she wanted to know what to do. That’s a good question and one worth exploring.
The Threat of Falling Trees and Falling Tree Branches
I have previously written on the responsibility that property owners may bear if a tree or branch falls and injures someone or damages property.
Falling trees can be very destructive. Back in February, a falling branch killed a man in Central Park. I remember a Christmas Eve when a tree fell onto my in-law’s house and took out much of their bedroom – while they were sleeping in it. When possible, it is better to take prior action than to deal with injuries, damaged property and a clean up.
Removing dead trees or dangerous tree branches is more than just the neighborly thing to do. Under New York State law, the property owner may be liable if he has actual notice of a dead or decayed tree, and does nothing to remove or repair it. [Ivancic v. Olmstead, 66 N.Y.2d 349]
What If Your Neighbor’s Tree Threatens Your Property?
In my client’s case, she had a neighbor whose tree threatened her property. The tree was on the property line and, if it fell, would damage my client’s house. A storm had damaged the tree and while part of the tree thrived, much of it was clearly dead and decaying. My client spoke to her neighbor about the tree and the neighbor rejected her request that he remove the tree.
My client then did something very smart. She contacted an arborist (i.e., a tree expert) to examine the tree. The arborist found that the tree indeed was damaged, that much of it was decaying and posed an imminent threat. She contacted me to ask what to do.
Here’s what I suggested. First, she should take pictures and notify her insurance company of the hazard. Second, she should speak to her neighbor again and share the arborist’s report. It is always best to resolve situations amicably, especially when dealing with a neighbor.
If a neighborly conversation fails, then she should send a letter with a copy of the arborist’s report to her neighbor. In the cover letter, she should state that the tree poses a threat to her property and safety and request that he remove the tree. She should also state that the neighbor should inform his homeowners’ insurance company. She should send that letter via certified mail to verify that the neighbor receives it. Doing so may not help neighborly relations – which do not sound that good anyway – yet it both protects my client and may spur action by the neighbor. If she knows the neighbor’s insurance company, she should send the same certified letter to the insurance company.
Upon receiving the letter and arborist’s report, the neighbor should act. If the neighbor fails to notify his insurance company, he runs the risk of voiding his coverage. If he notifies the insurance company, it is likely they will require him to remove the tree as a condition of their coverage.
If the neighbor remains unresponsive, my client can file a nuisance lawsuit against him to force removal of the tree. My experience suggests that the certified letter will do the trick and it is not necessary to file a lawsuit.
Taking Care of Dead Trees Make for Good Neighbors
A rotting or dead tree or tree branch that falls is not necessarily an act of nature. Decaying and fallen trees in the forest provide many creatures with shelter and sustenance. In urban and suburban settings, those dead and decaying trees pose a hazard. If I have one on my property that threatens people’s safety or property, I have an obligation to remove it. If my neighbor brings such a danger on my property to my attention, then I should act. It is the neighborly thing to do and it will protect me against a damage suit if the tree were to fall and injure someone.
If you are a property owner and have questions or if you have been hurt by a fallen tree and have questions, call me. I will be glad to discuss your rights, answer your questions and help you with a potential case. You can call me at 1-800-660-1466 or send me an email at Carol@SchlittLaw.com. The consultation is free and I will gladly assist you.
I hope you found this information helpful. Please call or email me if you have comments or questions or would like assistance with a case. You can also visit my website or my blog New York Law Thoughts to learn more.
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.