• A Neighbor’s Tree Threatens Your Property, What Can You Do?

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.

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.

  • Brian Donovan

    I live in a new development. The builders cut down most of the trees leaving some tall pines (100ft) standing on their own and very vulnerable to falling. On two separate occassions trees have fallen from my neighbors 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?

    • Law Office of Carol L. Schlitt

      You might consider the following.

      1. Contact an arborist and ask him to evaluate the trees in question. Even healthy looking trees can pose a hazard due to location or soil conditions.

      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. Ask him to take down the trees before they cause damage. You should add a paragraph advising him 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 recommendation may invalidate his 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.

      If the arborist finds no threat from the trees, there is probably not much that you can do.

      I hope this helps.

      Carol L. Schlitt

  • dino j. lombardi

    Dear Carol,

    I am a tenant on the ground floor of an Upper East Side 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.

    I am an attorney so please feel free to speak like one.

    • Law Office of Carol L. Schlitt

      Dear Dino,
      Your situation raises several questions. If I understand correctly, 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.

      However, 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 this helps.

      CLS

  • Scott

    Can a tenant force a landlord to remove a dangerous Tree?, Oregon

    • SchlittLaw

      First, I must tell you that we practice law in New York and are not expert on the laws of Oregon. I can offer some general guidance. A tenant can generally not force a landlord to take any action unless a lease gives the tenant the right to do so. If there is a law, regulation or ordinance that requires action, a tenant can seek to have that law, regulation or ordinance enforced. If there is a hazard, such as a dangerous tree, and the tenant puts the landlord on notice about the hazard, the landlord could be held liable if that hazard causes the tenant (or anyone else) harm. If the landlord refuses to act, the tenant could seek a court order to force the landlord to act.