legal tree problem

[PCTREE]

Ok so I went on an estimate this morning. Turned into one of my least favorite kind of scenario. So my customer has a big healthy red oak close to the property line. A year ago the neighbor had her lawyer send a letter stating the tree was a hazard to her property. In Virginia if you get a certified letter stating the tree is a hazard then if it fails it becomes your financial responsibility to fix the damages. This Im sure was intended for dead or hazardous trees. So my customer hired me to trim back pretty much all the growth over the property line, sucked hacking it back but thats what the neighbor wanted. So year later and they get another letter, this time I talk to the lady and she wants us to top the tree The funny thing is she has a POS oak that has been butchered by the line guys all leaning over her house that hasnt been trimmed in years. I asked her why shes not concerned about that tree

Anyway so now if my customer doesnt appease this moronic women if the tree does fail they could be liable and since they have been notified in writing that the tree is a hazard their insurance co. would probably deem them negligent and not pay...

I work for some rich dude who has a bunch of rentals, he told me the first thing he does when he buys a house is send a letter to every neighbor stating their trees are a hazard to his house. What Im getting at is soon nobody will be able to have a tree due to the liability.

My customer wants me to put it in writing that her tree isnt a hazard. I told her ANY tree is a hazard given the right storm but I will put it in writing that it is healthy and structurally sound.

Im thinking about whether my customer should sue for harasment just to start to try to curb this crazy development.....

Thoughts??

 

[Paul B]

Who said it was a hazard? The lawyer? If so, I would hardly call that an expert opinion.
Any tree is not a hazard, any tree with a target can become a hazard with sufficient conditions. In the system for the TRACE program a hazard isnt a black and white deal, its a sliding scale of facts and opinion, like real life. I would suggest getting a well qualified arborist to assess the tree, if it comes out on the low end of hazard rating, hire your own lawyer and sue the first one for undue harassment

 

[NeTree]

Tell me again this country isn't screwed.

 

[Fiddler]

So there are no guidelines as to what is considered a hazard tree or not under this law? Seems to me a "qualified person" would have to declare it a hazard and specify why they did so. At the very least I'd think she should write her State Representatives as should you. This seems like another case of misuse of a law that was well meaning at its beginning.

If you haven't yet, you might read the entire law itself and see what it really has to say. Often people misread or misunderstand what a law really says such as the supposed "separation of church and State" that has no basis in law, but was only a minority opinion one supreme court judge included in an opposing view he wrote on his own.

 

[Old Monkey]

I work for some rich dude who has a bunch of rentals, he told me the first thing he does when he buys a house is send a letter to every neighbor stating their trees are a hazard to his house. What Im getting at is soon nobody will be able to have a tree due to the liability.

That right there is messed up. I am in agreement with Erik here which must one of the signs of the coming Apocalypse.

 

[lumberjack]

Any tree that has a target is a hazard tree.

I wouldn't put anything in writing aside from a bid to remove the tree.

 

[sotc]

I would have someone qualified assess the tree to see if it truely is a hazard, its not easy to transfer liability back to the tree owner. Like Paul said, what does a lawyer know about tree risk? Topping could open up more liability than already exists as it is not an accepted industry standard

 

[jefflovstrom@sb]

Any tree that has a target is a hazard tree.

That is kinda extreme. Planes can fall from they sky and anyone could be a target so planes are a hazard.
I don't think I would top a tree because some lawyer said so.
You could always decline due to ethics.
Jeff (no apostrophes)

 

[Paul B]

Carl is right, any tree with a target is a hazard tree, the rating is probably extremely low but its always possible.

 

[Mr. Sir]

Put the neighbor on "ignore" and move on.

 

[treelooker]

Carl you are a wuss.

I do a lot of these assessments; same law in NC and most everywhere, derived from english common law. very straightforward to assess risk and specify mitigation. in my report i certainly would document the ratty trees on the complainer's property- -sets the context and actual risk tolerance vs perceived risk in neighbor tree.

PC no offense but you got sucked into hysteria by whacking to the line without getting the "hazard" better defined (or debunked). Chicken Little bs. i pruned the big tree in the attached (chapel hill nc) only after some backandforth with some really hysterical people after a hurricane and a hardass ins co., and then not at the line but chosen laterals.

Say what you want about isa certification but it does help stay plugged into the risk aspect of this biz. not that complicated--sotc and fiddler and paul are right about a qualified person to report but you are qualified enough to assess and report if you want to set your mind to ID real vs perceived risk.

Or why not post pics and you can get a group report from the 'house.

 

[PCTREE]

My main vetch is not so much about this specific tree as it is about the current system of everybody trying to avoid liability, person just has to send a certified letter and then their neighbor has to be liable in the event of an act of God or take the tree down. As I said I have heard of somebody who had this happen and the insurance co. wouldnt pay for any damages as the insured had been notified the tree was a hazard so was neglegent. As I say soon nobody will be able to have trees because of the financial repercusions......

 

[Paul B]

isnt an act of (G)od impossible to leave anyone liable? Its an act of God, not an act of a human being, no?

 

[sotc]

Paul, had a qualified person bebutted the letter with sound reasons why they tree appeared to be fine and did due diligence in the inspection, I would bet the act of god would have been the final outcome

 

[stehansen]

Trees are very subjective and the legal system doesn't deal well with that.

 

[NeTree]

I too would be interested in reading the whole text of the mentioned law.

Can you throw us up a link Paul?

 

[Fiddler]

Here's part of an article about the decision in court I've found so far. http://www.washingtonpost.com/wp-dyn/content/article/2007/09/14/AR2007091401340_2.html[/URL]

"We're living in a very densely populated subdivision in Northern Virginia," Cook-Walker-Fancher said. "Virginia is growing in leaps and bounds -- the roads are testimony to that with all the traffic. We can't have 17-foot back yards with 90-foot trees."

Yesterday, the court adopted a new rule and sent the Fanchers' suit back to Circuit Court. The rule, modeled after a 1981 case in Hawaii, says that a neighbor can't sue a tree owner for the little annoying things -- "casting shade or dropping leaves, flowers, or fruit." But it's a different story if the tree becomes a nuisance. The owner of a nuisance tree "may be held responsible for harm caused to [adjoining property], and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance," the court said.


Here is a link to the virginia supreme court decision

http://caselaw.findlaw.com/va-supreme-court/1153823.html

 

[treelooker]

"Paul, had a qualified person rebutted the letter with sound reasons why they tree appeared to be fine and did due diligence in the inspection, I would bet the act of god would have been the final outcome"

sotc is right here; duelling reports, and let the facts be the criterion for decision. Detailed reports can blow away hack speculation. Proper assessment and mitigation can undo concerns of negligence. but if all arborists do is operate saws, then yes bean counters at ins co and lawyers define what arboriculture should be; a sad situation indeed.

The VA case cited was about a big sweetgum's roots busting things up, and 2 neighbors who did not know how to talk to each other. Its application is limited, though some overreacted. see merullo's site treeandneighborlaw.com for a lot more of this.

 

[NeTree]

Seems to me it is being grossly misunderstood.

 

[treesandsurf]

We've had a number of these here on Oahu where the neighbor is convinced my client's tree is going to fall on their house. Have had good luck selling the client on a documented assessment of the tree, which is usually very low in the ratings and then they are able to present that info to the neighbor which has so far worked wonders.

jp

 

[sotc]

But it's a different story if the tree becomes a nuisance. The owner of a nuisance tree "may be held responsible for harm caused to [adjoining property], and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance," the court said.

This is also legit, if a tree is causing someone elses property damage or not allowing them to use their property, then something has to happen. I reccomended to friend that they put in a root barrier at the fenceline before the neighbors fruitless mulberry roots invaded their property, those trees are planted in to small of a yard everyday!

 

[jefflovstrom@sb]

You do not own the 'atmosphere' above your property, and if you do, what height limit?

 

[Fiddler]

Might check this out Jeff...

"The landowner has exclusive control of the immediate reaches of the enveloping atmosphere, even though the airspace is a public highway[ii]. S/he owns at least as much above the ground as s/he can occupy or use in connection with the land[iii]. The right of an owner of lands extends downward and upward indefinitely[iv]."


http://aviation.uslegal.com/ownersh...e-and-relative-rights-of-surface-proprietors/

 

[NeTree]

Correct.

 

[sotc]

Unless your digging destablizes your neighbors property...