# Dead tree in a neighbors yard..



## WolverineMarine (Sep 28, 2008)

Hey guys..I did a stump job at a guys house yesterday and there was a 60' locust in this guys neighbors yard that was prolly 70% maybe more rotted..and is in IMMINENT danger of falling on this guys house when we get another good wind storm...The owner of the place I did the stump at said he'd called his insurance company and told them about it but they said they couldn't do anything about it until it falls..I have a buddy on the local PD and had him come over and tell me what he thought..he said he'd talk to the neighbor and see what he could do about it..there is no easment..and instead of costing the homeowner $3000 plus in an insurance claim to fix his house when this thing comes down..could he sue his neighbor when it does fall? I dunno..I tried to give the guy some kind of reassurance that something could be done..but I wanna know what you guys think?


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## Justice (Sep 28, 2008)

You can sue for anything, but yes he would have a case. He should have an "expert", licenced tree expert, or BCMA or whichever is recognized by your state as an expert witness in court, and have him do a hazard tree evaluation. He should then send the results to the neighbor certified mail. Once he has been notified I believe not doing anything could be classified as negligence which is a whole other law suit.

It might be better for him to just go over and talk to his neighbor first. He might be willing to do something about it after a talk. 

If I were you however if your not "qualified" I would be wary of giving advise, because you could find yourself in court too. If you have already done so I would write something up telling your client to go further and do as mentioned above to clear yourself of any negligence.


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## WolverineMarine (Sep 28, 2008)

I'm curious as to what kinda of negligence I could be guilty of..all I did was say I couldnt believe the tree was still standing and hadn't fallen yet and should attempt to try and do something to avoid an absolute certainty....I called my cop buddy as a courtesy to try and help him out..the guy has been very worried about this tree for a while now..and his neighbor is the shall we say..not so friendly type


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## Justice (Sep 28, 2008)

Your probably not "guilty" of anything, but if lawyers get involved they usually name everyone on the law suit. 

Like when you go on a quote and the client says "no way am I paying that". Shortly there after the tree falls and they sue because you did not write down the urgency of the hazard. Your the professional so they come back to you. Like a Dr. not diagnosing a condition correctly. 

Like I said there will probably be no issues, but I have learned the hard way to cover my A$$.

Unfortunately many times we try to do the right thing (and I believe you are doing the right and good thing) and end up the loser, so just a little protection for yourself.


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## BCMA (Sep 28, 2008)

Justic has given good advice. The homeowner may not need to hire an expert though. A letter sent certified mail to the tree owner indicating that their neighbor is concerned about the health, condition, liability, etc. is usually enough to put the owner of the tree on notice. If the owner of the tree does nothing and the tree fails, they may be held negligent and liable. Also send a copy to their insurance company.
I am not an attorney, so please do not construe this as legal advice. They may need an attorney to write the letter.


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## pdqdl (Sep 28, 2008)

*It Probably doesn't matter how many experts you get.*

In my experience, the insurance companies will not pay for preventative tree work. Also, the civil courts seem to have decided (at least around here) that any tree that falls is an act of god. Other areas might be different, but I have never heard of anyone being successfully sued for a tree on their property falling on the neighbors car, house, dog, family, whatever. 

I think it is because tree damages are so common, the insurance companies and courts simply don't have enough time to defend every tree that falls on someone elses property. If you want protection from falling trees, buy your own coverage, because the neighbor's probably won't.

That's the way it is in KC. Other areas are probably much different.

I had a customer once that had a dead & dangerous tree fall on the house. Not only were they not able to force removal before it happened, their own insurance company would not pay for ANYTHING other than the removal of the tree from off the roof of the house. All they would pay for was to get it to the ground, and all disposal charges and cleanup were the homeowners responsibility. They even put in a clause that the homeowners could not throw the fallen tree parts back over into the neighbors yard where it came from!

I used to do tree removals for the "Dangerous Trees Dept." of Kansas City. They would attempt to force property owners to remove trees that were deemed a hazard to persons or property. I think that dept was discontinued because the city couldn't bill the property owner for the removal and that they didn't have enough money to take care of all the bad trees.


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## BCMA (Sep 28, 2008)

pdqdl said:


> In my experience, the insurance companies will not pay for preventative tree work. Also, the civil courts seem to have decided (at least around here) that any tree that falls is an act of god. Other areas might be different, but I have never heard of anyone being successfully sued for a tree on their property falling on the neighbors car, house, dog, family, whatever.
> 
> I think it is because tree damages are so common, the insurance companies and courts simply don't have enough time to defend every tree that falls on someone elses property. If you want protection from falling trees, buy your own coverage, because the neighbor's probably won't.
> 
> ...



*In my experience, the insurance companies will not pay for preventative tree work. * Correct...The insurance company will not pay for the tree work. The purpose of the homeowner notifying the owner of the tree is to bring it to his attention so that they cannot say, “I never knew”. This will help establish negligence.

*Also, the civil courts seem to have decided (at least around here) that any tree that falls is an act of god. * Not if negligence is involved.

*Other areas might be different, but I have never heard of anyone being successfully sued for a tree on their property falling on the neighbors car, house, dog, family, whatever. *It actually happens quite often.

*I think it is because tree damages are so common, the insurance companies and courts simply don't have enough time to defend every tree that falls on someone elses property. * The courts don’t defend…they rule. It’s the attorneys and plaintiff’s responsibility to sue. If they sue, the courts have to rule.

*I had a customer once that had a dead & dangerous tree fall on the house. Not only were they not able to force removal before it happened, their own insurance company would not pay for ANYTHING other than the removal of the tree from off the roof of the house. All they would pay for was to get it to the ground, and all disposal charges and cleanup were the homeowners responsibility. They even put in a clause that the homeowners could not throw the fallen tree parts back over into the neighbors yard where it came from! * Bad insurance company. I have not seen this as a rule. We do a lot of insurance work as an expert witness, and as a contractor. All insurance companies are different, and have different policies.

Here are a couple of books and a website:

Arboriculture and the Law, by Victor D. Merullo

Tree Law Cases, by Lew Bloch

http://www.treeandneighborlaw.com/main/


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## masterarbor (Sep 29, 2008)

BCMA said:


> Justic has given good advice. The homeowner may not need to hire an expert though. A letter sent certified mail to the tree owner indicating that their neighbor is concerned about the health, condition, liability, etc. is usually enough to put the owner of the tree on notice. If the owner of the tree does nothing and the tree fails, they may be held negligent and liable. Also send a copy to their insurance company.
> I am not an attorney, so please do not construe this as legal advice. They may need an attorney to write the letter.



Good course of action!


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## Justice (Sep 29, 2008)

Thanks for the "props", BCMA.

The one other thing that sending a letter to the other homeowners insurance company will do is put them (the insurance company) on notice that they will be held responsible in the event of a claim. They will not pay for preventative, but they will come out and inspect and send out "recommendations" that the homeowner will have 45 days (depending on state) to fix or they will drop them as an insured. Like a lifted sidewalk that is a trip hazard. So it may cause the other homeowner to fix the problem after all. 
Insurance companies usually don't go to court, they settle between themselves out side of court. Court is too expensive. If you hire an attorney they always try to settle before going to court. 
Suing for punitive damages is more difficult, and negligence I would think would have to be proved. So it really depends on how far you want to take it, or what your loss is. A new roof is one thing. Loosing a leg, or a life is a totally different story. 

As BCMA said, I am not a lawyer and I am not giving legal advise. 

I agree with BCMA that it is not "an act of god" if an expert has declared it a hazard and the owner notified. That is why notification is important, and if there is a problem an expert will be required to come and examine the tree anyway. Just my opinion, it might be cheaper to have the expert evaluate now than a lawyer write a letter.


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## treeseer (Sep 29, 2008)

"a 60' locust in this guys neighbors yard that was prolly 70% maybe more rotted."

What does this mean? Why do you say failure was "IMMINENT"? A picture is worth...

It's not unusual for removal specialists to exaggerate risk.

Tim, Justice is right, anyone can submit the certified letter. 30 days here puts them on notice. Leave lawyers out of it; that's my non-legal advice.


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## BCMA (Sep 29, 2008)

The only reason I mentioned “attorney” is because they carry a big stick. When you get a letter from Such and such firm, people stand up and take notice. But…a certified letter from the homeowner may be sufficient. 

The letter to the insurance is meant to go the insurance company of the homeowner who has their house at risk. The reason for this is if the tree fails, and the homeowners insurance has been notified of the prior actions taken, it gives them the support to sue the neighbors (who own the tree) insurance company for the damages.


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## clearance (Sep 29, 2008)

treeseer said:


> "a 60' locust in this guys neighbors yard that was prolly 70% maybe more rotted."
> 
> What does this mean? Why do you say failure was "IMMINENT"? A picture is worth...
> 
> ...



Here we go again, save the p.o.s. tree at all costs.........

"That tree is bad news, it needs to be cut down before it kills someone, damages property and costs you a hug headache" Or words to that effect. Have your 5-0 buddy try this. Before the letter.


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## WolverineMarine (Sep 30, 2008)

treeseer said:


> "a 60' locust in this guys neighbors yard that was prolly 70% maybe more rotted."
> 
> What does this mean? Why do you say failure was "IMMINENT"? A picture is worth...
> 
> ...



The cambium and live growth on a section 10ft long were missing..the rotted heart wood had gaping holes in it..bark was falling off..and when I mean imminent danger..I mean..this tree is so weak..there is zero chance it could be climbed w/o the absolute certainty it would colapse. A tree in this kind of condition is light years beyond my experience level..with a bucket truck or not..I would not take the job even it were offered to me..
I'm glad I just the stump for the neighbor..I saw this tree as a major danger and told the guy accordingly..


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## squad143 (Oct 25, 2008)

BCMA said:


> Justic has given good advice. The homeowner may not need to hire an expert though. A letter sent certified mail to the tree owner indicating that their neighbor is concerned about the health, condition, liability, etc. is usually enough to put the owner of the tree on notice. If the owner of the tree does nothing and the tree fails, they may be held negligent and liable. *Also send a copy to their insurance company*.
> I am not an attorney, so please do not construe this as legal advice. They may need an attorney to write the letter.



How do you find out who his insurance company is???


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## John Paul Sanborn (Oct 25, 2008)

squad143 said:


> How do you find out who his insurance company is???



In this case the letter is going to the insurance company of the Devildog's stump grinding customer, that is the owner of the property at risk.

There is a concept in common law of the "reasonable person", a reasonable person knows that j-walking a busy street is high risk, so a motorist is less liable for an accident then if it were at an intersection.

there is precedence in case law where a *reasonable person* identified a *known defect* in a tree, that later resulted in damage or injury was able to have the courts rule against the owner.

The process in The City of Milwaukee is to notify the city, they will send a forester out to assess. If there is an elevated risk due to defect, encroachment, or even deadwood load the city will order the work done, just as if there were a problem with a structure, or uncut lawn.

The property owner is given a reasonable time to comply with the order, or show intent (a contract to prune a red oak in proper season has been allowed). Non compliance will result in the city doing the work or bidding it out. The cost of the work and enforcement costs is applied to the property tax as a special assessment.


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## pdqdl (Oct 25, 2008)

squad143 said:


> How do you find out who his insurance company is???



I am not aware of any requirements from any government to carry liability insurance on a home or "owner", so there is almost no practical way to find out except by asking.

Given that they have a POS tree that is ready to fall and have not done it, I would expect no cooperation, especially since there is a good chance they have no coverage.

If your REALLY want to find their insurance coverage (if it exists), go to the property record of the government agency that manages property taxes, probably your County gov. It should be a matter of public record who the owner of any parcel of ground is. From that information, you may be able to find out if there is a lien against the property. If there is a lien, contact the lien holder (probably a bank), and they will probably be happy to tell you who the insurance company is. Most liens are protected against lawsuits and tax foreclosures by an escrow account, which pays the insurance and taxes for the homeowner. Unfortunately, the escrow account usually only provides coverage for casualty loss, but the policies are often combined with liability coverage, and might be the same company.


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## pdqdl (Oct 25, 2008)

John Paul Sanborn said:


> ...
> 
> The process in The City of Milwaukee is to notify the city, they will send a forester out to assess. If there is an elevated risk due to defect, encroachment, or even deadwood load the city will order the work done, just as if there were a problem with a structure, or uncut lawn.
> 
> The property owner is given a reasonable time to comply with the order, or show intent (a contract to prune a red oak in proper season has been allowed). Non compliance will result in the city doing the work or bidding it out. The cost of the work and enforcement costs is applied to the property tax as a special assessment.



That won't work too well in KCMO. They have all those ordinances in place, but the "Dangerous Trees" section of the city government has been dismantled for lack of funding. Consequently, there are dangerous trees all over this town, just waiting to smack the neighbor.


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## John Paul Sanborn (Oct 25, 2008)

pdqdl said:


> That won't work too well in KCMO. They have all those ordinances in place, but the "Dangerous Trees" section of the city government has been dismantled for lack of funding. Consequently, there are dangerous trees all over this town, just waiting to smack the neighbor.



Especially after all those storms over the past 8-10 years. I worked with Joe Henderson for a week or two after the big ice storm in the early part of the decade.


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## BCMA (Oct 25, 2008)

squad143 said:


> How do you find out who his insurance company is???



Sorry, I did not explain myself well. The person who is writing the letter that has their property threatened from the neighbors tree, should send a letter to their own insurance company. That way if the tree should fail, it will be their own insurance that will cover the damage to the structure, but the insurance Co. has the option to sue the neighbors (tree owner) insurance company to cover the damages. I have seen this happen.


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## Ekka (Oct 27, 2008)

Sad and frustrating to have such azzholes for neighbours!

Is the place available for us to see on Google Maps Street View?

How about some pics, then give this URL to the scrooge tree owner so he gets to see what the real world think of him, also send the link for the thread to the insurance company, life is so easy if you use the tools right at your fingertips.


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