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Yet Another Property Line Question

Posted by barnhardt9999 8a (My Page) on
Mon, Nov 25, 13 at 9:39

My house backs up to city owned land. About 5 feet from the property line there is a large winged elm tree about 65 feet tall. It is in the shadow of a 100 foot oak that cuses it to grow at about a 45 degree angle over the property line and fence. The top of the central leader is approx. 35 ft past the property line. It is almost certain to fall in the next bad ice storm (amazingly its been 10 years since we had one).

Here are my questions:

First, can I remove the tree at my expense (other than the first 10-15 feet of the trunk it is 100% over the property line). There would be no branches or leaves left if I cut only the part on my side of the fence.

Second, do I have any obligation to remove it? If I don't there will certainly be an insurace claim in the future.

Thrid, if I request the city remove it do they have any obligation to do so? If they ignore my request, can I (or more likely my insurance company) sue them after damage is done?


Follow-Up Postings:

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RE: Yet Another Property Line Question

Talk to the city. Have them come out and take a look at it
Mike


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RE: Yet Another Property Line Question

What Mike said, but to elaborate...

Laws about such a situation vary from place to place, so we can't be for sure what's legal in your case. However, if the tree is a danger to safety or property (which you say it is) and you give proper notice to the city, they'd probably address the issue fairly rapidly (at their cost) to avoid liability. Once they are made aware of the situation, they are much more likely to be liable if something happens and most municipalities want to avoid that kind of thing like the plague.


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RE: Yet Another Property Line Question

Barn, all of the above is true. I'd like to comment on your statement that the tree is almost certain to fail in the next ice storm. While only a complete fool would offer you a gaurantee that it won't, I believe that the mere fact of its having been there long enough to grow to 65 ft, at this angle, speaks to its relative strength and stability. So the big question in my mind, whenever such issues come up, is whether or not there is a target within the danger zone. Is the kid's sandbox directly under? A nice patio, a part of a house, a driveway? Believe it or now, where there's no emminent danger to anything, a reasonable approach can at times be to do nothing.

So tell us a bit more about the area under the tree's likely drop zone.

+oM


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RE: Yet Another Property Line Question

  • Posted by beng z6 western MD (My Page) on
    Mon, Nov 25, 13 at 12:02

Elms, other than Siberian elm, are tough-wooded.


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RE: Yet Another Property Line Question

get a city supervisor out there ...;

and tell him you are unlike all the rest.. and wont complain... but will, in fact, revel ... in total removal ...

also suggest to them.. while joking around.. ask them if they would be willing to insure your property from future damage ... this is usually what forces their hand in removing such ... especially if it is hanging over structures.. etc ....

finally ... if you are wits end.. offer to pay for removal.. IF they will give you a release and waiver of liability ...

but in any regard.. the opinion of a local atty is highly suggested ... as noted.. law varies wildly ... city to city ...

too bad there arent any power lines involved.. that would get their tree butchers involved ...

wonder if there is an easement involved also ... you are presuming city ownership??? ... i dont know who else.. but records are records .....

ken


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RE: Yet Another Property Line Question

We have not heard an answer to wisconsitom question a bout the location of the tree and its relation ot structures on the property.

Assuming that
the ground around the base of the tree is solid;
the ground is not being lifted by the tree;
there is no rot in the base;
there is no significant structure that it could fall on and cause significant damage;

I would let it stand. It has been in this condition for several decades and has not fallen.

If any of the assumptions fail I would evaluate and do what is necessary even if it means cutting the tree down.


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RE: Yet Another Property Line Question

Winged elms are tough trees and do not break easily. I had a 50ft pine uproot onto a winged elm. The elm bent but held the pine off my roof.
I'm down here in NC and have been though my fair share of ice storms, I have never had winged or slipper elm break, they are known down here as really tough trees to break.
Not sure if that makes you feel any better. With all that said, I would probably just cut it down or contact the city if it worried you that much.
I would cut it myself so I can keep the firewood.


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RE: Yet Another Property Line Question

One thing is sure, although the law allows you to cut what overhangs onto your property, the law is also very clear that you cannot kill the offending tree. If, as you say, cutting what overhangs your lot would leave the tree without leaves, I think you would agree this amounts to taking (killing) the tree.

I would involve the owners (city, parks and rec, golf course owners) and ask somebody to come out and see the problem. Make a record of your contacts and take pictures. If the tree falls and you have already told them about a problem, they are liable for damages. If the tree falls on unoccupied space, no damages would result.


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RE: Yet Another Property Line Question

"One thing is sure, although the law allows you to cut what overhangs onto your property, the law is also very clear that you cannot kill the offending tree."

You are making assumptions about local laws that are not universally true!

"If the tree falls and you have already told them about a problem, they are liable for damages."

This assumption is also not necessarily true. It would depend on multiple variables.


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RE: Yet Another Property Line Question


brandon, this is for 49 of the 50 states. As close to universally true as it can be because this problem has vexed neighbors since Cro-Magnon man cleared the brush away from his cave and his neighbor complained. There is precedence from the 1200's in Britain continuing until today. So yes, it is universal. Before you say it ain't, I would like you to show one non-Louisiana case where a neighbor is enjoined from cutting overhanging greenery, or one case where the tree is all but killed and the cutter didn't have to pay. Just one, buddy. It is established in Common Law as well as the laws of 49 states.

So far as the tree falling after you have pointed it out, the laws allow for "reasonable" doubts. A tree leaning completely over a building is beyond reasonable doubt. Damage would come from the owner of the tree.

This post was edited by Dzitmoidonc on Mon, Nov 25, 13 at 22:01


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RE: Yet Another Property Line Question

Notice to the city/municipality/agency/etc may be made by phone but must be followed with written notice -- ie: a letter.


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RE: Yet Another Property Line Question

Ah, Louisiana…'We got here in this state something known as the Napoleonic Code…'


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RE: Yet Another Property Line Question

"There is precedence from the 1200's in Britain continuing until today."

Dzitmoidonc, I've a feeling we're not in Britain anymore. Local tree ordinances and, in some cases, other rules apply to local, legal tree pruning issues.

"Before you say it ain't, I would like you to show one non-Louisiana case where a neighbor is enjoined from cutting overhanging greenery."

This is not even really uncommon, and, your assumption is untrue on multiple levels. First, some communities/cities require you to obtain approval or get a permit before any major tree pruning (and especially for "city trees"). Some places, like one city here in Tennessee, make these permits, even for your own trees, harder to get than you might imagine. You may have to prove a need for pruning. Second, in some communities/cities it is illegal to prune even jointly owned trees without approval from both owners. In most places (but not all) a tree who's base is located on an adjacent property is the sole property of the adjacent property owner. In a few areas, even the overhang may be considered property of the tree's owner. Third, many communities/cities have pruning standards that might not be practical to adhere to while removing overhanging vegetation in certain situations, even if it doesn't kill the tree (the case in this thread might very well be considered "topping" and could be illegal). Some cities even define "excessive pruning" as improper/unapproved pruning and have been known to apply that to things as unbelievable as crape murder!

"So far as the tree falling after you have pointed it out, the laws allow for "reasonable" doubts. A tree leaning completely over a building is beyond reasonable doubt. Damage would come from the owner of the tree."

That's just plain FALSE! As has been pointed out by a number of other posters in the above conversation, just because the tree is leaning does not mean there is a reasonable expectation of premature failure. There's much more to proving liability than just proving that someone knew something could possibly happen.


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RE: Yet Another Property Line Question

Yeah I would say Brandon is right about this one. For better for worse, in a lot of places, the law is more on the side of the tree, and/or the adjacent owner, than it is on the future health of your house's structure.
In the former case (i.e., more involving the trees themselves) i have read that some urban municipalities, maybe more in Europe but certainly some regulation-minded parts of the US, so much as trimming a branch, no matter its relation to a propertly line, requires a permit. For example here n Maryland - a state that's a long time leader in natural resources regulation for various reasons historical and modern - any tree within 1/5 mile of the Chesapeake is suppose to require permission to remove.
http://www.dnr.state.md.us/criticalarea/faq.asp#2
I also have no doubt this is not strictly enforced everywhere. My awareness of that kept me from buying a house that I liked at the time but I realize now it would have been undesirable for other factors, so in a way I've always been very glad for this regulation. (I'm within 1 mile of the Bay, but not within 1000 ft of it)


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RE: Yet Another Property Line Question

Sounds like the answer is to let it stand and maybe see if I can get the city to prune it. The ground is solid and I imagine the roots are very intertwined with the oak's (which isn't going anywhere in my life- its masive, healthy and growing upright). It also, sounds like my assumption that it will snap in an ice storm isn't true. The threat is mainly to the fence, an arbor, some stone raised beds and my kids in the yard (who are unlikely to be out in an icestorm anyhow.)


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RE: Yet Another Property Line Question

Sounds about right, Barn. Above all, talk to the City Forester if such exists, or if not, a reasonable alternate, perhaps Director of Public Works. You get the idea....somebody within the city hierarchy should have this type of thing as a part of their reponsibilities.

The municipality for whom I happen to work would be very responsive in a case like this. And while I was the one to first say that this tree's failure is not necessarily a given, in most cases, reponsible parties will look to head off a problem.

+oM


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RE: Yet Another Property Line Question

First of all brandon and the others, the reason I mention England at all is because so much is carried over here in Common Law in case you didn't realize that. Common Law underpins the law in this country (exception noted), and you make the point exactly. You need permission of all sorts to cut the tree, but overhanging pruning is taken as a right. The right is a given, all the laws do is provide exceptions to this right. Somehow, either my poor writing or your poor understanding, you construe my answer to argue something else. Those exceptions apply only to a few places that have made exceptions to the Common Law. Obviously, you think most places have exceptions. I beg to differ. Even places with tree ordinances make exceptions for viewsheds and trees that overhang structures.

You show all kinds of links to explain terms but cannot come up with an instance of somebody being prosecuted for cutting overhanging trees. With all your superior knowledge, I would think a man in your occupation would have some ready. After all, you are so sure that Common Law holds no water anymore. So certain that you ridicule it.

"That's just plain FALSE!" False that a leaning tree is not considered a menace? Really? Do you or anybody else possess ground penetrating radar that you would tell somebody that a 45 degree tree won't fall because the roots appear healthy? Because the tree is not obviously cavitated?

Here's some cases from insurance sources:

From Pennsylvania:

"Brion said if your neighbor's tree fell on your property during the storm, and you previously had warned your neighbor about the tree being dangerous and asked him to do something about it, then it might be his responsibility after all. You'd likely have to prove you had warned your neighbor, though, such as by telling him in a certified letter."

From a law site:

"Property owners in every state have the right to cut off branches and roots that stray into their property. In most cases this is the only help that is provided by the law, even when damage from a tree is substantial."

"As a general rule a property owner who trims an encroaching tree belonging to a neighbor can trim only up to the boundary line and must obtain permission to enter the tree owner's property, unless the limbs threaten to cause imminent and grave harm. A property owner cannot cut the entire tree down and cannot destroy the structural integrity or the cosmetic symmetry and appeal of a tree by improper trimming."

This, damage from negligence (or no negligence):
http://www.nolo.com/legal-encyclopedia/question-neighbor-tree-fell-sue-28150.html

Just more about laws regarding trimming, etc:

http://www.justanswer.com/real-estate-law/713c2-responsible-tree-fall-neighbors-house-during.html

Now where is your proof that you cannot prune what overhangs your lot? Anything? How about something that shows that a warned tree owner had a tree that caused damage, was sued and escaped penalty? In your infinite wisdom, can you show even non-law sources that state that you can be warned about a leaning tree that falls (not storm related) and you escape liability?

Yes, there are rules about removing trees in a riparian, wetland or other special situation, but this is not about leaning, overhanging trees. It is about water quality, erosion and such. Not at all germane at all to the OP's question.

I still maintain (and show the links why I believe this), you can prune to the property line (no taking the tree, killing it etc.), and if you have doubts about the soundness of the tree, you warn the owner and collect after the damage occurs.


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RE: Yet Another Property Line Question

"Somehow, either my poor writing or your poor understanding..."

It well could be your poor writing, but I'm really more inclined to think it's your lack of experience or your eagerness to over-generalize.

"Those exceptions apply only to a few places..."

Well, I'd take exception with your words "only to a few". But, when you make the statement, "One thing is sure...the law allows you to cut what overhangs onto your property," it sounds as if you are saying there are no exceptions. Maybe it was just poor writing?

"Obviously, you think most places have exceptions."

Hmm, maybe that's "your poor understanding" coming into play.

"You show all kinds of links to explain terms but cannot come up with an instance of somebody being prosecuted for cutting overhanging trees."

Actually, I provided three examples, as links, that disproved your assumptions even more generally than that! There's really no reason to try to disprove your argument in some unusual way that you assumed I meant. Multiple factors may legally prevent the property owner from pruning the tree.

"False that a leaning tree is not considered a menace?"

ABSOLUTELY!! Even someone with just a little tree experience would realize that! The fact that a tree is leaning, by itself (that fact, by itself), is unrelated to whether it is a safety hazard. The complete novice may assume that the healthy tree's roots are not strong enough to hold up the weight or that the wood structure is less likely to support the load, but that just doesn't turn out to be the case in real life. There are many, many, many old, old trees that have been leaning all their life and are doing great!

When I read the original post, I guessed that the poster had seen a change of some type (rot, further leaning, etc) that indicated a problem. That was the only reason I expressed concern about the problem. It turns out that there is no known reason to think the tree is less safe than the oak beside it!

Re: legal sites

Yes, I have seen some of the comments like this online. Some are surprising because usually those professionally involved with the law are more careful not to over generalize their advice. Seems like maybe these guys are just giving quick answers without much concern as to precision.


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RE: Yet Another Property Line Question

Why argue about something that has a factual answer? The good advice to the OP was to contact his local peeps and see what the local laws are. What one thinks is advisable is unfortunately not relevant.

And if someone wants to write a treatise on how local property laws in Western nations have evolved from English Common Law and incorporated Napoleonic Code, have at it, but somehow I doubt that is why people post in this forum. Doesn't iVillage have a Lawyer-Wanna-Be Forum?

:-)

Sara who is a gardener not a fighter


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RE: Yet Another Property Line Question

Sara, I object in the strongest possible way to the words you just posted! Actually, no I don't. I'm just a funnin wit ya.

OP, talk to your City Forester yet? That is almost surely the person that'll take care of matters.

+oM


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RE: Yet Another Property Line Question

:-)

Sara


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RE: Yet Another Property Line Question

Because a picture is worth a thousand words...

I had never mentioned it (because its totally off my property) but there is also a large dead tree (see the one with the white spot) that has a good shot of falling on the elm. Do yall think that one is big enough to start a domino effect?


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RE: Yet Another Property Line Question

Seeing a picture isn't like being there, but I think if that tree were hanging over my property, I'd like to have it gone just for aesthetic reasons. And, the way I'd try to approach it is to contact the city and act as if I was very worried about the tree falling. Whether it actually would is not necessarily relevant. Often, a city or utility or even a business will act to remove a tree just to "keep the peace". It doesn't always work, but if you approach them nicely and with a little luck they just might remove both trees. They really should remove the dead one if, when it falls, it might fall onto your property or be any type of safety hazard. And, since they're there to remove the dead one, why not just go ahead and take care of both trees. I've seen it work both ways, but I've also seen the right sort of approach (can't think of exactly how to say it and still be politically correct, but a woman might have better luck than a man) work more often than not.


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RE: Yet Another Property Line Question

.......but, now that I see the picture, that tree-the original one in question-is not "leaning" per se. I mean, it is growing at an angle, but that's just the point, it's growing that way, not gradually tipping over. It's obvious that it's a simple case of a plant exhibiting phototropism, stretching for light.

As such, it is almost assuredly as strong as a straight-vertical bole. People have a hard time believing this, but due to the way wood fibers are laid up in such cases, a very strong structure is created.

Furthermore, dead trees are simply not more likely to fail in a wind storm or what have you, than perfectly healthy trees full of foliage. They can stand that way for decades, all the while acting as habitat for a wide array of other lifeforms.

So there you have it. On the other hand, people make decisions to have stuff like that taken down all the time. The world keeps spinning, and in the newly-created bright spot, new trees often get growing!

+oM


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RE: Yet Another Property Line Question

Saying to the city "its your tree, do something about it or else"....
The "or else" wont even budge them...probably laugh about it.
You cant touch that tree without permission and IN WRITING.

A letter from a lawyer to the city...REGISTERED...would undoubtedly get their attention and get somebody out there to appease you. If they feel the tree is somehow, some way, sometime, dangerous to your well-being, then I'd say they probably will do something.....and both parties would have to agree to the solution.

Otherwise....don't do anything until the written permission is given or you could face an expensive law-suit.


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RE: Yet Another Property Line Question

"Saying to the city "its your tree, do something about it or else," (won't work.)"

That's for sure! You want to seem more worried than angry or confrontational (at least until that approach fails, if it does).


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RE: Yet Another Property Line Question

Barn,
The tree that is growing sideways a little is just that.
I wouldn't worry about it at all. Trees grow like that.
The dead tree is marked to be cut down with that white spot on it, so they did have someone out there checking the trees.
I would want the dead one down, bu the other one, no, I would leave it.
Don't worry about it, it will be fine.
 photo SouthBoundry_zps768ce194.jpg


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RE: Yet Another Property Line Question

A neighbor has 4 silver maples on the property line. When a branch falls, it gets sent over the line to the owners side. The male neighbor that lives on the other side of the property line isn't very nice. I am okay with that, but the female is nice enough to wave. I think that the Mrs. planted these silver maples on the property line, possibly, without telling Mr. Nastyface, no-wave. Making him think Our family planted them. When branches fall, if I can't safely run them over. If they are substancial, I pitch them over to the side of the tree owners side. I wouldn't think he was mean, but once I was going to wave and he looked at me, and I held the look, and was seconds from the wave and he made a sour- a**ed face at me. His expression was saying, "W@hat!!!? Most peeps around my neighborhood wave even if they don't know you, if you wave they wave back. He accused my neighbor next to me of stealing soil. We both bought a few buckets from another neighbor delivered by bobcat scoop-ful in broad daylight. Sorry if anyone lost interest in the post by now, but, some neighbors can be hard to agree with, I am glad this isn't a planned community with the rules of a -- I forget the initials Home --whatever it is. Even those Duck Dynasty guys have to pay to live in a neighborhood that tells them what to do. I would never (couldn't afford to) live in a fancy place that tells you what you can and can't do on your land you pay taxes on. The nerve of that is really something.


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