Neighbors’ Trees that Cause Problems: Questions and Answers June 11, 2010

Posted by Carol L. Schlitt in Consumer News, Neighbor's Trees, Premises Liability.
Tags: Falling Trees, Neighbor's Trees, New York Personal Injury Lawyer, ny personal injury attorney, Premises Liability
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I receive many questions and comments about issues relating to falling trees and tree branches and people concerned about their neighbor’s trees that could fall and cause damage. I want to share my answer to some questions I have received on the issue of falling trees. You can also read my articles  ”A Neighbor’s Tree Threatens Your Property, What Can You Do? and ”Injuries Caused by Falling Trees and Branches: Who is Responsible?”

Question 1: Can my neighbor be held liable if a tree on his property falls and damages my house?

Answer 1: 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.] If your neighbor had prior notice of the danger and could have taken clear and reasonable steps to remove the threat, then he can be held liable for damage caused by the tree.

Question 2: There is a large tree on my neighbor’s yard that appears to be dead and decayed. I am afraid that it will fall on my house. Can I force my neighbor to cut down the tree?

Answer 2: In the interest of good neighborly relations, I would suggest that you talk to your neighbor, point out the problem and ask him or her to remove the tree. If that approach fails, then you might consider the following:

1. Contact an arborist and ask him to evaluate the trees in question. An arborist is a tree expert and you can find them in the Yellow Pages or through online directories like Angie’s List. If the arborist finds no threat from the trees, there is probably not much that you can do.

2. If the arborist’s report recommends that the trees come down, you should share that report with your neighbor and ask him to take down the trees in question.

3. If your neighbor refuses, then you should consider the following. Draft a letter stating that the arborist has found that the trees threaten your property and safety and that the arborist recommended that the trees come down. Attach a copy of the arborist’s report. Ask him to take down the trees before they cause damage.

4. If your neighbor fails to respond or still refuses to take down the tree, then you should follow up with a second letter. The second letter should contain the same information as your first letter. You should add a paragraph advising your neighbor to contact his homeowner’s insurance company about this risk and tell him that you are contacting your homeowner’s insurance company. You can add that failing to notify his insurance company about the letter and arborist’s recommendation may invalidate his insurance coverage. Send the letter via certified mail. You should send a copy of the letter to your homeowner’s insurance company. This step usually forces action.

4. If your neighbor still refuses to act, you can consider speaking to an attorney to seek a court order requiring him to take down the tree. The fact that you took the previous actions before resorting to legal action will bolster your case.

Question 3: I live in a new development. The builders cut down most of the trees leaving some tall pines ( 100 feet) standing on their own and very vulnerable to falling. On two separate occasions, trees have fallen from my neighbor’s yard on my house and two other trees have fallen, but not hit anything. I have offered to split the cost of having the remaining four removed, but he refuses. The trees aren’t dead, but it’s only a matter of time before another one falls. I am also very worried of one injuring my daughters (both under two) if they were to fall in my yard on a windy day. Is there anything I can do if the trees aren’t dead?

Answer 3: Trees do not need to be dead to pose a threat. Their proximity to a house or issues with the soil can make them a threat. Also, you may not be able to determine if the tree is healthy or not.

As I suggested in the answer to the previous question, if your neighbor refuses to take action, you can consult an arborist for an expert evaluation of the threat posed by your neighbor’s trees. If the arborist finds a threat and recommends the removal of the trees, then you should follow the steps outlined above to contact your neighbor and force him to remove the trees.

Question 4: The neighbor behind my house has a Weeping Willow tree and the branches come into my backyard and interfere with our use of the backyard. I have asked my neighbor to remove the tree and he refuses, calls it his pride and joy. Is there anything I can do?

Answer 4: Let’s assume that the weeping willow does not pose a threat to your property or safety, that it is simply a nuisance. You may not be able to force your neighbor to remove his tree, but you have the right to trim and remove any part of the tree that comes onto your property. You may have to perform this work yourself or pay for someone to do it as you cannot force your neighbor to trim his tree.

Question 5: I am a tenant on the ground floor of an Upper East Side of Manhattan townhouse. There is a nice back garden but for the two huge (50 ft. plus?) trees on the neighbor’s property. Their bases are a good 20-30 ft. from the rear fence but the branches overhang the garden somewhat from a considerable height. These branches form a dense canopy which blocks out most of the light and they deposit a thick carpet of yellowish-green pollen flowers all over the garden during May and June, making it impossible to eat, drink cook or even sit out there during those optimal weeks. It also makes for regular 2 hr. clean-up details. When moderate to high winds and rains come, there is also a substantial amount of small and medium branches that fall into the garden. No telling when something bigger is going to come down.

Our live-in landlord is not going to assist us in seeking either voluntary abatement from the neighbor or legal redress because she lives on the upper floors, does not use the garden, and is not affected, at least as far as quality of life. Do we as tenants have standing to ask the neighbor to prune for our sake alone or seek legal redress if the neighbor blows us off? Any advice on the law and practical tips on how to proceed would be much appreciated.

Answer 5: This situation raises several questions. The trees that you object to are not diseased or decayed and do not pose a threat to property or safety. At the same time, they do create a nuisance to your use of the garden. Under these circumstances, I don’t believe that you can force the neighbor to trim these trees at his own expense. As in the other cases I cited, you can consult with an arborist to get an expert opinion on the danger posed by these trees. If the arborist finds a danger and recommends the removal of the trees, you can follow the steps outlined above to request that your neighbor remove the trees.

Let’s assume that the trees to do not pose an imminent threat, but they do cause a nuisance. An abutting landowner has the right to prune any branches that overhang his or her property for any reason. You cannot take the tree down and you cannot force the neighbor to either prune or remove the tree but you can cut back any portion of the tree that goes past the property line at your own expense.

Your problem is a bit more complicated because you are a tenant and not the property owner. You point out that your landlord is unconcerned about the issue because it does not affect the enjoyment of her portion of the building. Would the landlord object if you told her that you were going to have the branches that overhang the property removed? If your landlord consents or even acquiesces, then I think you are well within your right to trim the offending branches. If your landlord objects to your trimming of the neighbor’s tree, you may have to learn to put up with the nuisance.

If the nuisance were so great that it interfered with your rights, then you might have a cause of action; however, that sounds like a stretch given your circumstances.

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.

Carol L. Schlitt
New York Personal Injury Attorney
www.SchlittLaw.com
1-800-660-1466
Carol@SchlittLaw.com

This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.