TNCR Brain Trust Question

[Ivorythumper]

Neighbor has a massive oak tree that overhangs our property -- probably 80 years old and planted by some previous owner. It litters seasonally -- pollen in the spring, acorns in the fall, leaves in the winter -- occasionally drops large branches, and shades our south exposure so we can't install pV panels.

Under PA law this is simple trespass -- no need to argue nuisance or harm or damages -- Jones v Wagner 1993 -- Pennsylvania Superior Court -- clearly affirms the right of the landowner to self remedy against encroachment, to be compensated for cost of remedy, and for the courts to grant equitable relief compelling the trespassing neighbor to remedy back to their property line. The fact of tree trespass (root or limb) is an unequivocal act of negligence, regardless of for how long, without statute of limitation, without claims to easement or adverse possession.

We've been trying to find a solution to this for four years -- occasionally talking with the neighbors - an Italian couple, she who is a world renown game theorist, behavioral ethicist, PhD Cambridge, on faculty at Wharton UPenn . We are generally civil and neighborly and helpful, but guarded with them. Last year we approached them again about trimming back the tree, and got a quote for $2200. They brought in their own arborist (ours was not good enough) who evaluated the tree, noted the problems, and proposed $4500. They also then brought in a "forensic arborist" (roll eyes) who valued the tree at $75K to $125K and recommend only 20% of the canopy could be removed without damaging the tree. At the time we were just interest in clearing from our deck and roof. We offered to pay $2250 toward the work -- they refused, and said if we did any damage to the tree that we would be held liable: "you and your contractor will be held responsible for any damage caused by excessive pruning that may result in irreparable damage to it”. and “I ensure [sic] you the monetary value of that tree is something your do not want to underestimate.”

We then got a letter from their attorney advising us to "refrain from removing any healthy limbs, but if you feel compelled to do so, we caution you against any removal that would endanger the health of the tree". The attorney included a copy of the arborist's report with the valuation for emphasis.

This is apparently all contrary to PA law -- Jones v Wagner held "Since appellees in this case were only exercising their right to trim the branches and limbs of appellants' encroaching trees, they may not be held liable in damages for doing so. " With the chilling effect, and our desire to not get into a protracted legal entanglement, hoping to maintain neighborly relations, and all the other events of last year, we decided against self-remedy even if we would be successful in court, and we decided to let the situation lay fallow.

Now that I've had some time and focus, I've drafted a response to the attorney, mostly just to work out for myself the facts of the matter, and the legal case. I can post it -- its four pages of TL;DR which summarizes the above. We simply want the neighbor to remedy their own trespass, even though such radical surgery might kill the tree in the next few years, which is not our problem. Based on their arborist's report and their attorney's letter, the tree would be susceptible to disease, decay, structural instability, and create risks to personal property and safety. In short, the tree would not survive, so either we tolerate it or it should be taken down. But that's their problem, not ours.

We want the tree cut back from our land and to assert “the landowner's right to peaceably enjoy full, exclusive use of his property.”

Should we hire an attorney for this, or should our first response (a year later to the attorney's letter of March 2, 2021) be to the attorney outlining our understanding of the law and requesting he advise his client to remedy their own property trespass?

If they refuse, then we gin up an attorney, or just go to the Court of Common Pleas at the County to file a motion for equitable relief to compel remedy, and/or to be held harmless if we need to remedy the situation, and /or to be compensated for any expenses.

Or should we not respond, and just go directly to the Court of Common Pleas to file for relief?

Your thoughts?

[George K]

Tough one.

First of all, you have made the request to remove the trespass. They responded with an attorney and threatened you with action should the tree die. They have the right to a tree, but you have a right to not have it over your property. They lawyered up already, and my thought would be to get a legal opinion as well.

Secondly, I say that because, from what you've written, they don't seem to be the "neighborly" type. So, yeah, I'd get legal counsel.

Finally, if you do take "radical" action and amputate the offending limbs, and the tree dies and falls into your property, who's liable?

[Copper]

If I was your neighbor, I would remove all the branches above your property, immediately.

And apologize for the trouble.

In my old house I tried to never plant anything that would cross the line. If it did start to cross the line, or even get close, I would trim it.

In my new house I have 50 existing trees and neighbors on both sides have similar trees. So we have some overlap and it is not a problem.

If I was you, I would ask the neighbor to remove the branches. If they don't, then put the law on them.

You might try talking to a tree guy about this, they probably deal with this all the time. You might get some ideas.

And at my old house I trimmed the neighbor's trees and shrubs all the time if they got near my yard. I never did figure out if he was oblivious or just the world's biggest jerk.

[Ivorythumper]

@george-k said in TNCR Brain Trust Question:

Tough one.

First of all, you have made the request to remove the trespass. They responded with an attorney and threatened you with action should the tree die. They have the right to a tree, but you have a right to not have it over your property. They lawyered up already, and my thought would be to get a legal opinion as well.

Secondly, I say that because, from what you've written, they don't seem to be the "neighborly" type. So, yeah, I'd get legal counsel.

Finally, if you do take "radical" action and amputate the offending limbs, and the tree dies and falls into your property, who's liable?

Good question about future liability -- the implication of "Since appellees in this case were only exercising their right to trim the branches and limbs of appellants' encroaching trees, they may not be held liable in damages for doing so" is that not liable is not liable. People have obligations to maintain their own property, and if the tree is dying they have to deal with it.

If we cut back some 30% of the canopy off of our property the tree will fall the other way according to the laws of physics...

[Ivorythumper]

@copper Yeah, but you're a rational actor. The neighbor is an expert on studying rational acts, not necessarily one herself.

[Jolly]

Is there anything growing underneath the tree and is the neighbor's backyard camera'd.

[George K]

@jolly said in TNCR Brain Trust Question:

Is there anything growing underneath the tree

From my (inexpert) reading of the law, what's under the tree, is irrelevant. If it encroaches on IT's property, it's his to deal with as he wishes.

The only question is this: If his actions to trim the tree kill it, what is his liability?

[George K]

https://www.nolo.com/legal-encyclopedia/trees-neighbors-faq.html#answer-1743443

My neighbor killed my tree. Am I entitled to compensation for the tree?

Yes. The basic rule is that someone who cuts down, removes, or hurts a tree without permission owes the tree's owner money to compensate for the harm done. You can sue to enforce that right, but you probably won't have to, once you tell your neighbor what the law is.

Can I trim the branches of the neighbor's tree that hang over my yard?

You have the legal right to trim tree branches up to the property line. But you may not go onto the neighbor's property or destroy the tree itself.

In almost every state, a person who intentionally injures someone else's tree is liable to the owner for two or three times the amount of actual monetary loss. These penalties protect tree owners by providing harsh deterrents to would-be loggers.

https://www.nolo.com/legal-encyclopedia/neighbor-tree-damage-46933.html

What counts as "damage" to your tree?

To run afoul of the law, your neighbor doesn't have to chop down your tree. Its enough to just damage the health of your tree. For example, your neighbor has the legal right to trim branches of your tree if they hang over the property line. But if the trimming seriously injures your tree, your neighbor will be liable to you for the damage done. Similarly, if your neighbor uses a chemical in his or her yard to destroy unwanted roots, and the chemical seeps onto your property and kills one of your trees, your neighbor can be liable.

[Jolly]

@george-k said in TNCR Brain Trust Question:

@jolly said in TNCR Brain Trust Question:

Is there anything growing underneath the tree

From my (inexpert) reading of the law, what's under the tree, is irrelevant. If it encroaches on IT's property, it's his to deal with as he wishes.

The only question is this: If his actions to trim the tree kill it, what is his liability?

Kill it without the neighbors knowing it. Hence, my question.

[George K]

@jolly said in TNCR Brain Trust Question:

Kill it without the neighbors knowing it.

'Choot 'em!

[Ivorythumper]

@jolly said in TNCR Brain Trust Question:

Is there anything growing underneath the tree and is the neighbor's backyard camera'd.

I'm not about to poison it, if that's what you're thinking.

[George K]

@ivorythumper said in TNCR Brain Trust Question:

@jolly said in TNCR Brain Trust Question:

Is there anything growing underneath the tree and is the neighbor's backyard camera'd.

I'm not about to poison it, if that's what you're thinking.

Yeah, that would have some serious legal
exposure. Destroying neighbor's property?

Don't go there.

[Ivorythumper]

@george-k said in TNCR Brain Trust Question:

@ivorythumper said in TNCR Brain Trust Question:

@jolly said in TNCR Brain Trust Question:

Is there anything growing underneath the tree and is the neighbor's backyard camera'd.

I'm not about to poison it, if that's what you're thinking.

Yeah, that would have some serious legal
exposure. Destroying neighbor's property?

Don't go there.

The law basically requires me to get a judgment compelling them to remedy.

I read of a case where the neighbor trimmed to the property line, but the tree then leaned back away from the property line, and the neighbor was sued for over trimming and trespass damage.

I don't know how that was settled but I don't need any exposure to risk.

So the plea to the court would be to compel the neighbor to remedy at their own expense and liability. If the tree dies, that's on them. If any damage happens, that's on them. If the tree cannot be pruned back to property line without risk or damage, and has to be removed, that's on them. The tree is just in the wrong place and has been for decades as soon as it started to trespass. The trespass is negligence which is continuous and always tortious.

So get the judge to say to them "you must remedy the trespass as you see fit, but you must remedy the trespass".

That's how I'm reading the law as the only safe way to proceed without further legal entanglement.

[George K]

@ivorythumper said in TNCR Brain Trust Question:

So get the judge to say to them "you must remedy the trespass as you see fit, but you must remedy the trespass".
That's how I'm reading the law as the only safe way to proceed without further legal entanglement.

That sound about right to me, but I'm no lawyer.

Call Quirt Saul.

[Klaus]

Having a bad relationship with neighbours is one of the worst things for ones quality of life, in my opinion. We had bad neighbour relationships in the past, and that was hell. I personally am willing to endure and sacrifice a lot before I risk an angry neighbour.

But in this case, it seems that hope is lost. When lawyers are involved, the relationship is beyond repair.

[George K]

@klaus said in TNCR Brain Trust Question:

When lawyers are involved, the relationship is beyond repair.

Oh YES.

That bridge was crossed (by the neighbor) a year ago.

[Klaus]

Maybe remind your game theory neighbour that a neighbour relation is basically the iterated prisoner's dilemma, and there the Nash equilibrium is to cooperate, and not to betray.

[Copper]

Yes, I would say do whatever it takes to keep the relationship cordial, or at least peaceful.

But if it has gone this far, it may be too late.

I found this on nolo, it may not apply in PA
https://www.nolo.com/legal-encyclopedia/trees-neighbors-faq.html#answer-1743433

Can I trim the branches of the neighbor's tree that hang over my yard?

You have the legal right to trim tree branches up to the property line. But you may not go onto the neighbor's property or destroy the tree itself.

In almost every state, a person who intentionally injures someone else's tree is liable to the owner for two or three times the amount of actual monetary loss. These penalties protect tree owners by providing harsh deterrents to would-be loggers.

[Mik]

How much has to be trimmed to allow you to move forward with solar? That’s really the important thing here.

[George K]

@mik said in TNCR Brain Trust Question:

How much has to be trimmed to allow you to move forward with solar? That’s really the important thing here.

Not sure about that. Once the tree's branches cross the property line, it's up to the owner of the trespassed property how to deal with it. What he wants to do with it should be irrelevant.

My concern is whether the trespassed has any liability for damage to the tree that is trespassing, should it die.