Tree hazard

[mike74]

What is the name of your state (only U.S. law)? California

Seeking guidance on how to deal with a hazard tree on my next door's property, just a few feet from the property line. The giant pine tree looms over our house and if it fails it will completely destroy our property and quite possibly kill us. The tree is far away from their house. About a year ago, a giant limb of the tree snapped and fell on their side of the property, exposing a huge wound on the trunk. Basically a quarter of the trunk is gone. We hired an arborist who noticed that they had cut the roots on their side because it had been damaging the driveway. According to another neighbor they cut these roots 6-7 years ago. The arborist report states the tree poses a "moderate" risk and any failure is mostly likely to impact our carport and the house.

The neighbors do not acknowledge the tree poses any danger, nor do they admit the roots are compromised. They are not decent people and reasoning with them is futile. We know they also hired an arborist but a couple of times we've asked to see the report, they've come up with excuses not to provide it.

What is the best course of action in this situation? Should we send a certified letter? If this letter came from an attorney, will they take it more seriously? If this ever goes to litigation, are my chances good of winning (forcing them to cut down the tree)? In my mind a severely damaged trunk and missing roots per a licensed arborists make this an open and shut case -- but with our legal system who knows?

 

[quincy]

What is the name of your state (only U.S. law)? California

Seeking guidance on how to deal with a hazard tree on my next door's property, just a few feet from the property line. The giant pine tree looms over our house and if it fails it will completely destroy our property and quite possibly kill us. The tree is far away from their house. About a year ago, a giant limb of the tree snapped and fell on their side of the property, exposing a huge wound on the trunk. Basically a quarter of the trunk is gone. We hired an arborist who noticed that they had cut the roots on their side because it had been damaging the driveway. According to another neighbor they cut these roots 6-7 years ago. The arborist report states the tree poses a "moderate" risk and any failure is mostly likely to impact our carport and the house.

The neighbors do not acknowledge the tree poses any danger, nor do they admit the roots are compromised. They are not decent people and reasoning with them is futile. We know they also hired an arborist but a couple of times we've asked to see the report, they've come up with excuses not to provide it.

What is the best course of action in this situation? Should we send a certified letter? If this letter came from an attorney, will they take it more seriously? If this ever goes to litigation, are my chances good of winning (forcing them to cut down the tree)? In my mind a severely damaged trunk and missing roots per a licensed arborists make this an open and shut case -- but with our legal system who knows?

Have you checked your city's tree ordinances? Is the pine that is growing on your neighbor's property a protected species in your area of California?

You could have an attorney draft a letter to the neighbor that includes the arborist's report and that advises the neighbor that you intend to hold them liable for any damages that the tree causes your property but, because the arborist said the tree only poses a "moderate risk," I would not expect your neighbor to remove the tree.

 

[adjusterjack]

In my mind a severely damaged trunk and missing roots per a licensed arborists make this an open and shut case -- but with our legal system who knows?

You're right. There is no such thing as an open and shut case.

You do need to put your neighbors on written notice of the potential hazard and document the condition with dated photos.

At least that will give your insurance company some ammunition after paying for any damage to your home.

As for being killed, that's a little overly dramatic as all of us live our lives with the chance of unexpected death from a variety of causes.

 

[NC Aggie]

....exposing a huge wound on the trunk. Basically a quarter of the trunk is gone. We hired an arborist who noticed that they had cut the roots on their side because it had been damaging the driveway. According to another neighbor they cut these roots 6-7 years ago. The arborist report states the tree poses a "moderate" risk and any failure is mostly likely to impact our carport and the house.

Well a couple of points here. Let me begin with this disclaimer, I'm not an arborist but I work with arborists on a regular basis with my work in construction.

Based solely on the information you've provided, there's nothing that indicates this tree is dead or dying or an imminent risk to fall. The cutting or pruning of the roots (if done by a certified arborist) is perfectly acceptable. While cutting some of the roots can compromise the support system of the tree, it wouldn't necessarily impact the health of tree (if done properly). The damage you described to the trunk of the tree sounds like the bark was damaged? Most pines trees can recover perfectly fine from this and typically do assuming no more than 33% of the bark has been removed from the tree. Additionally, based on your arborist's report, nothing in your post seems to indicate the arborist is concerned with the health of the tree. My experience with the term "moderate risk" in arborist reports and engineering reports simply put in layman's terms means it could pose a threat, but there's nothing definitive found in the course of the investigation that indicates it is high enough risk that requires immediate action.

So based on the above mentioned factors, I don't think it is an "open and shut case". I personally don't believe they would be held liable unless your arborist's report determined the tree is dying or at imminent risk to fall and they've made a recommendation that the tree be removed. And you've in turn, have provided your neighbor with a copy of the arborist report detailing this. If this isn't the case, and I assume it's not, your best course of action if you're truly concerned about the potential damage this tree could cause and especially for your family's safety is to offer to pay to have the tree cut down or maybe even see if the neighbor might open to sharing in the cost.

 

[quincy]

... your best course of action if you're truly concerned about the potential damage this tree could cause and especially for your family's safety is to offer to pay to have the tree cut down or maybe even see if the neighbor might open to sharing in the cost.

This, of course, depends on the type of tree, as some trees in California cannot be cut down without local, county or state authorization. It would have to be dead or judged a hazard. That is why I recommended mike74 check his area's tree ordinances.

 

[NC Aggie]

This, of course, depends on the type of tree, as some trees in California cannot be cut down without local, county or state authorization. It would have to be dead or judged a hazard. That is why I recommended mike74 check his area's tree ordinances.

Yes, absolutely check your local and state ordinances before proceeding with any tree removal but I don't think a pine, unless it's one of the rare species, would be protected. I think most municipalities can only dictate tree removal on private property when the tree in question is protected by local or state endangered species laws. But as quincy indicated, it's best to check your local ordinances before proceeding.

 

[quincy]

Yes, absolutely check your local and state ordinances before proceeding with any tree removal but I don't think a pine, unless it's one of the rare species, would be protected. I think most municipalities can only dictate tree removal on private property when the tree in question is protected by local or state endangered species laws. But as quincy indicated, it's best to check your local ordinances before proceeding.

In California, trees can be designated by ordinance as "heritage" trees - trees of a certain age or size or type - and these cannot be pruned or cut down by a property owner without authorization.

These are not (necessarily) rare or endangered trees, which would be protected under state or federal laws.

Some cities in California, for example, protect redwood trees and others do not. And most municipalities in California have tree ordinances. The area's tree ordinances, in other words, will need to be checked before any offer to share in the costs, or take on the entire cost, of cutting the neighbor's large pine.

 

[mike74]

Thanks for your responses

1. Pine tree is not protected in our city. You don't even need a permit to cut one.

2. This is truly a humongous tree, almost 100 years old and if it falls down and we're inside the house, it really could kill us. I'm not being too dramatic.

3. The damage affected the trunk itself, not just the bark. The exposed wound will not heal, according to the arborist. This is from this report "The large wound site measures 4 feet, 5 inches across and 7 feet, 7 inches high. This wound site runs the entire distance from the soil grade up to the included bark from the former co-dominant stem defect. The tear-out wound measures approximately 1 foot, 9 inches into the trunk from the driveway. The diameter of the remaining trunk is 4 feet, 9 inches, so the wound site spans nearly the entire diameter of the remaining trunk."

4. The damaged trunk is actually not what concerns me or the arborist. It will take 10 years or so for this to have an effect on the tree. The biggest immediate concern are the missing buttress roots on their side of the tree. Again from the report "there was a significant exposed defect – limited buttress rooting under the driveway. I probed the section of trunk that had begun to impound the decorative bricks along the driveway, and I found that the root crown was hollow in this area where I expected to see a transition zone from stem tissue to buttress rooting. The most likely failure point is the root crown transition zone. Due to the driveway repairs, most of the tensile buttress roots were observed to be absent. There was no observed structure that could supply the necessary “pulling” force to keep the trunk standing. Rather, the structures that stabilized the remaining trunk were the compressive buttress roots to the east that “pushed” the tree upright and the taproot that pushed against the soil in the opposite direction like a lever. Failure is more likely to the east and less likely to the west. The strongest roots are the tensile buttress roots. These are intact on the western side and absent on the eastern side. If the tree leans to the west, the tensile buttress roots will pull it upright. But if it leans to the east, the only roots that can apply corrective force are the compressive buttress roots to the east. "

Is there any way to find out who their insurance company is? If they knew the situation they would probably force them to deal with the issue. I contacted my insurance agent and told them what happened -- before I obtained the arborist report. I don't want to take it further with my insurance company as they could drop their coverage or increase the rates.

 

[quincy]

Thanks for your responses

1. Pine tree is not protected in our city. You don't even need a permit to cut one.

2. This is truly a humongous tree, almost 100 years old and if it falls down and we're inside the house, it really could kill us. I'm not being too dramatic.

3. The damage affected the trunk itself, not just the bark. The exposed wound will not heal, according to the arborist. This is from this report "The large wound site measures 4 feet, 5 inches across and 7 feet, 7 inches high. This wound site runs the entire distance from the soil grade up to the included bark from the former co-dominant stem defect. The tear-out wound measures approximately 1 foot, 9 inches into the trunk from the driveway. The diameter of the remaining trunk is 4 feet, 9 inches, so the wound site spans nearly the entire diameter of the remaining trunk."

4. The damaged trunk is actually not what concerns me or the arborist. It will take 10 years or so for this to have an effect on the tree. The biggest immediate concern are the missing buttress roots on their side of the tree. Again from the report "there was a significant exposed defect – limited buttress rooting under the driveway. I probed the section of trunk that had begun to impound the decorative bricks along the driveway, and I found that the root crown was hollow in this area where I expected to see a transition zone from stem tissue to buttress rooting. The most likely failure point is the root crown transition zone. Due to the driveway repairs, most of the tensile buttress roots were observed to be absent. There was no observed structure that could supply the necessary “pulling” force to keep the trunk standing. Rather, the structures that stabilized the remaining trunk were the compressive buttress roots to the east that “pushed” the tree upright and the taproot that pushed against the soil in the opposite direction like a lever. Failure is more likely to the east and less likely to the west. The strongest roots are the tensile buttress roots. These are intact on the western side and absent on the eastern side. If the tree leans to the west, the tensile buttress roots will pull it upright. But if it leans to the east, the only roots that can apply corrective force are the compressive buttress roots to the east. "

Is there any way to find out who their insurance company is? If they knew the situation they would probably force them to deal with the issue. I contacted my insurance agent and told them what happened -- before I obtained the arborist report. I don't want to take it further with my insurance company as they could drop their coverage or increase the rates.

Thank you for the additional details, mike74.

I would speak to an attorney in your area about drafting a letter and ask this attorney about the wisdom of contacting their insurance company. I do not think it smart.

 

[mike74]

Thanks Quincy.
I contacted one attorney - he wanted $1500 for the letter.

If I were to write the letter myself, what should I write? Should I include the arborist report? (I wish the arborisit was more forceful in this conclusion. His observations are worrisome but his conclusion is not). Threaten legal action if the tree is not removed?

 

[Zigner]

I'm curious - how did you obtain permission from this neighbor for your arborist to enter his land and examine his tree?

 

[mike74]

I'm curious - how did you obtain permission from this neighbor for your arborist to enter his land and examine his tree?

They were out of town. Their housekeeper let him in by opening the gate

 

[quincy]

Thanks Quincy.
I contacted one attorney - he wanted $1500 for the letter.

If I were to write the letter myself, what should I write? Should I include the arborist report? (I wish the arborisit was more forceful in this conclusion. His observations are worrisome but his conclusion is not). Threaten legal action if the tree is not removed?

Although the attorney's fee seems a bit high to me, the costs to remove the tree (or handle damage caused by the fallen tree) stand to be far greater. You should speak to more than one attorney, though, to compare rates. An attorney will probably not want to draft a letter without seeing the tree and speaking to an arborist.

I do not see that you have a lawsuit to pursue at this point. The tree is of "moderate" risk of falling only, according to your own arborist. If it were a "high" risk tree, you might have a better chance of compelling action.

Good luck.

 

[Zigner]

They were out of town. Their housekeeper let him in by opening the gate

A stroke of luck

 

[mike74]

So I found an attorney for a reasonable fee to find out their insurance company and send a letter both to the neighbors and their homeowner's insurance.

But I just learned that they are putting up the house for sale next month. Good news -- I guess. Now I'm thinking that we probably don't need to send a letter to their insurance company but instead send one to their realtor who would legally be obligated to disclose the tree issue to potential buyers. Question is whether I should send the letter to the neighbors now or wait until the house is listed for sale.