Tree roots, from a tree on my property, apparently extend into my
neighbors land, buckling their driveway.  They claim the buckling
showed up suddenly, otherwise they would have told me about it.

I am willing to remove the tree.

It is not clear to me that I should pay for repairs for what they
claim was an unknown problem (it certainly was unknown to me) until
they brought it to my attention.  I would even guess this is old news
to them and want me to pay the repair bills.

Am I responsible for damage repairs to the driveway?

Seattle, Washington   September, 2004
edwardfreedman@comcast.net

Good afternoon freedso-ga,
Thank you for allowing me to answer your question.  Below is some
information was able to find regarding tree roots encroaching onto a
neighbor's property.

Your situation is referred to as "abatement of a nuisance":  the
removal or termination or destruction of something that has been found
to be a nuisance.

As stated in a comment below, both you and your neighbor have duty
under the law to "mitigate" any damages.  To mitigate means to take
advantage of any reasonable opportunity you may have had under the
circumstances to reduce or minimize the loss or damage.

Source:  Lectric Law Library
(http://www.lectlaw.com/def2/m035.htm )

====================

In accordance with [Seattle] City Ordinance #90047 Title 15 Street Use
Code, it will be the responsibility of the property owner to maintain
the tree(s) in perpetuity.   City Ordinance No. 90047 names the
following trees as prohibited:

Acer Macrophyllum (Bigleaf maple, Oregon maple).
Populus trichocarpa, P. deltoides (Cottonwoods).
Populus Nigra (Lombardy poplar).

These species have aggressive roots.

Source:  Seattle.gov
(http://www.ci.seattle.wa.us/transportation/treeplanting.htm )

======================

"Suppose a tree trunk stands completely on one person's land, the
branches project over another person's land, and the tree roots
extends into the soil of another...the other property owner may cut
the branches and remove them if they are a nuisance...The adjacent
owner is regarded simply as tolerating a nuisance.  In addition, the
mere existence of a nuisance for any length of time will not allow to
create a perspective right.  The adjoining owner may cut off the
projected branches if they're a nuisance."

Source:  Blackstone Paralegal Studies:  Real Property, Part II

If the roots or branches of your tree encroach on your neighbors land,
your neighbor can cut them back to the boundary line. If they do not
want to do this themselves, they can ask a district court for an order
for the trimming or even removal of the tree.

Who pays?  If your neighbors have incurred costs in cutting back the
roots and branches on their side of the boundary, they probably will
not be able to claim them back from the tree owner.

But if the roots of your tree have damaged your neighbor's drains [or
in your neighbor's case, their driveway], you will probably have to
pay. Even if the damage results from forces outside your  control, you
may still be liable if you could have been expected to know the tree
was unsafe, and did not take reasonable steps to make it safe.  This
means you will have to pay the costs of fixing up the problem as well
as any compensation that may be due.

Local councils are generally reluctant to become involved in
neighborhood disputes about trees.  However, many trees are protected.
Classification of a protected tree will vary among councils and may
include specimen trees above a certain height, native vegetation, or
even "blanket protection" of all trees in your area.  Before you start
to chop down all or part of a large tree, check with the council
whether you need special permission.  Other forms of tree protection
include the listing of significant trees in a district plan, heritage
orders under the Resource Management Act and voluntary protection
under the Heritage Covenant provisions of the Historic Places Act.
There are substantial fines for ignoring some of these protections.
Your local council will be able to supply you with details of its
policy.  Some councils will also supply information on tree care and
will give names of recommended arbor culturists.

The council must also look after its own trees according to the same
basic rules as everyone else. Most councils have written policies
covering this, which vary from council to council. The question of who
pays for what also varies.

The first step is to let the council know there is a problem. If you
are not happy with the response, you can proceed as if the council
were a private landowner: perhaps by cutting back the offending roots
and branches, trying to get the council into mediation or even
starting legal proceedings.

If a tree owner and an aggrieved neighbor can't agree on what to do,
several courses of action are open.

Mediation and arbitration  - Both mediators and arbitrators are
available to help resolve a dispute. However, neither party can be
forced to take part in either of these processes.

A mediator will help you negotiate a solution to the dispute. An
arbitrator will impose a solution. Mediation is less formal and
usually less expensive, but cannot be enforced by a court unless you
have included enforcement procedures in your agreement. An arbitrated
settlement is backed by the courts.

Before you start, you should work out the likely costs. Mediation and
arbitration are charged on a time basis, and both parties are expected
to pay an equal share, unless another agreement is reached.

Disputes Tribunals can hear claims for damages to property for amounts
up to $7,500 (or $12,000 if the parties agree). Typical examples are
claims for damage to drains, driveways, foundations and fences.

However, generally a tribunal referee will not be able to hear claims
when the dispute is over loss of light, sunshine or views, or involves
removal or trimming of the tree. In the latter case, a referee can try
to help the two sides reach agreement. However, if your neighbor
decides to ignore this, you will have to go to the district court to
try to get the problem resolved.

District Court - Claims for more than $7,500, or that involve the loss
of light, sunshine or views, or that involve the removal or trimming
of trees, can be taken to a district court. The court can award
monetary compensation for damage caused by a tree. It can also order
that a tree be removed or trimmed.  Claims through the District Court
will almost certainly require the help of a lawyer and can be
expensive.

Source:  Consumer On-Line
( http://www.consumer.org.nz/topic.asp?category=Legal%20Rights&subcategory=Neighbours%20%26%20environment&docid=308&topic=Trees%20and%20neighbours&title=Your%20rights&contenttype=summary&bhcp=1
)

====================

Please understand that I am not a lawyer and I cannot give you legal
advice so if you are in a situation where you need legal
representation, please seek the help of a professional lawyer.

I hope this information is useful and should this answer require a
further explanation, please request clarification before rating it,
and I will be happy to look into this further.

Nenna-GA
Google Answers Researcher

Google Search Terms:  abatement, property, tree, extend, cut

The law is fairly well settled that a tree encroaching over a property
line is form of trespass, and generally speaking the trespasser
(that's you and your tree) is responsible for damages caused by the
trespass.  There is a corollary doctrine called the "duty to
mitigate," however, which says that a plaintiff cannot simply sit back
and allow his or her damages to accrue and multiply?he or she must act
swiftly to avoid the effects of the defendant's bad conduct and
mitigate, or reduce to the extent possible, the damages.  So if your
neighbor was on notice and did nothing and allowed the roots to
destroy the driveway, you are likely responsible, but only to the
extent that they did in fact mitigate their damages and act swiftly to
notify you, etc.  So if they learned about the dames on Monday but did
not act until Friday and $300 more damage was done in those
intervening days, you are only responsible for damage through Monday.

freedso--

Google Answers researchers (and commentors)are not authorized to give
legal advice, so you should not rely on any legal analysis you get
here without consulting with a licensed local attorney.

Issues involving tree damage are generally not clearcut, however,
because they are dependent on the facts of each case and the law of
negligence as it is applied in different states.

The article linked below may of some use to you because it was
published in Washington (in the Seattle Times) and consists of an
interview with an attorney who is described as "a nationally known
expert on tree law."  I commend the entire article to you attention,
but here is one paragraph dealing with situations like yours:


"Q: The roots of my neighbor's trees and shrubs have intruded into my
yard and are clogging my sewer line. I've already spent $400 having
the pipe snaked by a plumber. Now it looks like I might have to have
the line dug up because of these roots. Whose responsibility is it to
pay for this expensive project?

A: As an alternative to digging up your sewer line, Merullo says you
can cut off any roots that extend onto your property or put chemicals
in the line that will kill these intruders. Otherwise, Merullo says
that because this is an ongoing problem, you might be able to get
these roots declared a nuisance, in which case a court might put the
burden on your neighbor to remedy the problem. This is the same route
homeowners can take if a neighbor's tree is damaging their driveway or
retaining wall, etc., and the neighbor won't do anything about it."

Seattle Times: Home Forum: "Stately trees can be friends or foes" (July 11, 2004)
http://seattletimes.nwsource.com/html/homeforum/2001976092_homercol11.html


markj-ga

From all I've seen, it's generally the "neighborly" thing to do, to
either pay for, or split the cost of repairs to the driveway.  This
could also include taking care of the tree, by whatever means are
required. At the same time, if this was a problem for them, they
should have taken measures to care for their property as well, prior
to the damage.
Hopefully someone will provide you with a more exact answer.  Good
luck with your dispute, I hope your tree wins ;-)
Trea
 
"...The court disallowed money damages, because the neighbors had
failed to take advantage of earlier opportunities to exercise
self-help and remove the invading roots..."
http://www2.mnbar.org/benchandbar/2002/mar02/tree.htm

"...i am in a similar situation at the present time that your neighbor
is, my neighbors tree roots are protruding thru my asphalt driveway,
yes, the tree was there before my driveway, but as my attorney stated,
i could cut what ever was hanging over the property line, however, i
can not damage or kill the tree, if so i would be liable, just
trimming would not help me, it is the roots that are damaging, good
luck with your situation ..."
http://www.handymanwire.com/ubbthreads/showflat.php?Cat=&Board=Gardening&Number=230415&page=0&view=collapsed&sb=7&o=&fpart=4

"...Tree growth is a common problem. But if a tree grows on to your
property, it is your responsibility to remove or repair. Unless you
can prove your neighbor planted the tree in an effort to harm your
property.
Roots: If they damage something, you can cut back those roots and
repair the damage done. You can ask for compensation, but will
probably not get any.
Remember: Trees belong to everyone and are free to grow as they wish..."
http://www.handymanwire.com/ubbthreads/showflat.php?Cat=&Board=Gardening&Number=236808&page=0&view=collapsed&sb=7&o=&fpart=1

"...I am not aware there is any law that says your neighbor must pay
for the damage his tree does to your property. The reason is the
neighbor has no control over how the tree or its roots grow. The
general rule, as you have probably read in this column many times, is
you can trim the tree branches or roots back to the property line if
you don't kill the tree..."
http://www.chicagotribune.com/classified/realestate/renting/chi-0403210297mar21,0,3407914.story?coll=chi-classifiedrenting-hed

"...For more details, please consult a local real estate attorney...."

markj is, of course, correct.  Please consult a local real estate
attorney.  I only meant to offer a few general points of guidance.

Best of luck.

Hi there!

Could not help myself.Have to say this:

It seems to me that the real question on hand is:
Are you about to move in the near future?
If not, avoid the legal stuff!
Some 3-400$ is a low price for good relations if it comes to that.
Do you have a mutual friend that both parties accept? His/Her comment
might be a good compromise.
The concept of "wip and carrot" as we say here, might also be one that works.
Esp. if combined with some good meal (without alcohol).
Good luck