Question about Trees and Property Line

[todd vainisi]

Hi Observers, long time no post!

I have an unusually large and oddly shaped property in Lakewood. I also have a ridiculous amount of trees on the property, though almost all of them seem to be original there to demarcate the property line. It seems that before I purchased my home 20 years ago, the previous owner decided that he'd be able to sell the house more easily with a fence surrounding most of the property, especially the parts of the property that are located a long way from the house. Now, he erected the fence almost against most of the trees, but usually in such a way that the trees would seem to belong to me. In the furthest back area, a couple of the trees have huge trunks and he fenced in irregularly around them. I believe he got away with this because at the time all those houses were rental units and there were no "permanent" residents to argue with about what side of the tree to put the fence.

Flash forward 20 years, one of the biggest trees is dead. One of the backyard neighbors at some point in the last 20 to 40 years erected a garage right underneath the massive branches. I'd have a tough time believing the garage pre-dated the tree. In any case, I am being asked to take the tree down before any of the branches fall onto the neighbors garage. The tree threatens nothing of mine, and it's clear the neighbor has not been performing maintenance to keep the massive branches clear of the vertical plane above the garage. In other words, I am content to let nature take this down. Obviously, my neighbor is not. I have lined up a few tree trimming services to come give estimates, but I'm expecting it to be in the neighborhood of $1000 or more. That may be chump change to some of you near the lake, but it's a pretty formidable expense for my family. And I worry about the precedent set if I accept full responsibility for the tree, because, as I mentioned, it seems the residents of yore used trees to define the property lines and I do not want sole responsibility to take down every tree with a trunk located partially on my property. All three of my back yard neighbors have been enjoying excellent shade and it has helped keep their ac bills down over the years, I am sure. I don't get the same benefit because this tree is no where near my home. Probably moot points.

So my first question is: how can I determine if the fence is really on the property line or if it was just put where it was for convenience (obviously the fence could not pass through the tree). I was thinking that perhaps there is municipal code which states how many feet from the property line the garage can legally be built and then I could measure from the garage to determine whether the tree is considered shared property. However, I have been unsuccessful looking through our building codes to find such a requirement. Does anyone know that answer?

And, more in general, am I for sure responsible for taking the tree down if it is on my property? I have read so much that suggests that its the problem of the property owner on who's property the tree or branch falls to cover damages or trim. But I have also seen information suggesting that since the tree has died, it is solely the responsibility of the party who "owns" the tree (if it turns out it is not on the property line).

I want to be a good neighbor, but I have like 35 trees back there and I'd rather move then spend 35k taking down trees for the next 10 years - none of which threaten my home and all of which exist along the property lines. I'm up shit creek, right?

[todd vainisi]

Also one more question: If I do hire someone to take down the tree, and during the course of that, the neighbor's garage is damaged - do I get sued or is the contractor responsible? Would my neighbor sue me, and then I sue the contractor? This is exactly why I thought it was up to each property owner to keep branches clear of their structures.

[Amy Martin]

My advice to you is - hire an attorney rather than ask for legal advice on the Deck. You will get different answers and be even more confused. This is happening as we speak to my neighbors across the street. The City asked her for years to take down her tree (after numerous limbs came down), and she did nothing. Now, TODAY, the tree is coming down, and the City will be sending her the bill. You would be best served by an attorney in this matter. With the number of trees that you describe you have on your property, the investment will be well worth it down the line should anything bad happen.

[Bridget Conant]

Agree with Amy. Or at the very least call your insurance agent.

The fact that the tree is dying and that the neighbor pointed it out to you and asked you to remove the branches increases your liability because it may be used to show you should have known about the issue.

And do call around for estimates. I got wildly varying ones when I needed a tree removed.

Good luck.

[cmager]

Hire a surveyor to survey your property and establish the property lines. And inquire of your insurance agent, possibly a lawyer.

[Jim O'Bryan]

Hire a surveyor to survey your property and establish the property lines. And inquire of your insurance agent, possibly a lawyer.

Get a survey, everyone should have one.

Call Cartwright Tree Service, tell him you read about him in the Observer, and they removed O'Bryan's Tree.

Cheaper than the lawyer.

.

[todd vainisi]

Thanks for the suggestions folks.

[Stan Austin]

todd--your questions certainly show concern for your yard, your neighbors and Lakewood. Kudos! Sometimes there are peculiar lots with interesting histories in Lakewood. A lawyer and surveyor will help out. Also, bringing this to the Deck can help others who have conundrums!

[Peter Grossetti]

... help others who have conundrums!

Stan - Sounds painful! There’s probably some sort of salve or ointment (or perhaps a shot) that might clear that up. Check with the good folks at Lakewood Hospital (ooops!)

[Paul Schrimpf]

in having done some research into situations in my yard and a relative's, the city has no interest in helping settle these questions .... you are really on your own. In general I was told the liability for trees split across properties are shared .. if the branches are in your yard you are responsible .. if in their yard, they are. if the tree is wholly in your yard it is on you. Getting an official survey to determine the tree's exact position within your property is the first most important step. I can tell you both side fences in our yard do not follow the property lines, and affected our position with two of the trees we have around the perimeter of our properties. Good luck!

[Vince Frantz]

Get a STAKED survey which may cost more. The surveyor may suggest this but it is not a sales pitch. You will learn a lot.

[todd vainisi]

Can anyone recommend a surveyor?

[todd vainisi]

I can tell you both side fences in our yard do not follow the property lines, and affected our position with two of the trees we have around the perimeter of our properties. Good luck!

Thank you for this information, Paul. Anecdotal though it may be, I think I'd better find out who owns the trees all over my sprawling south-central lakewood estate (lol). I'm joking about my estate, but serious with the appreciation and thanks. I think my brain was just waiting for some confirmation that the fences do sometimes turn out to be in the wrong spot.

[Gary Rice]

Hi Todd,

I would guess that the vast majority of Lakewood properties have ALREADY been survey staked many years ago. Those property stakes, though likely covered with an inch or two of growth and ground by now, are magnetic-sensitive metal and can be easily found in a few minutes with a metal detector and a small digging tool. You can likely figure out within a foot or two where they are and go from there. (Obviously, don't move them!) I have a metal detector, if you would like to PM me. You can also request original deed copies from records and those should clearly lay out your property boundaries too.

I learned about the old stakes the hard way by paying for a survey for my own property that I did not need.

As far as trees go, and with deep respect to all the tree-huggers out there. Lakewood generally has fairly shallow topsoil over an impervious clay base. Trees can and do age, rot, and wind-topple all the time around here and when they're not doing that, they often tear up someone's driveway or water system in their endless search for nutrition and moisture.

Regardless who is "legally liable" for a tree fall, I'm sure you would feel really bad if one of your trees fell on a neighbor's home or garage. We took all the big trees off our property, and when I felt that a neighbor's pine was threatening my garage, I offered to share his expense in getting rid of it and that's just what we did. Neighbors helping neighbors.

Back to the banjo...