Bonapart & Associates Law and Mediation: Practical Solutions for an Impractical World
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The Pacific Sun

Chainsaw massacre
Woodman, spare that tree or else ...

Pacific Sun, April 12-18, 1995

By Barri Kaplan Bonapart

You are racing out the door to go to work and the telephone rings. It's your next door neighbor --the one who only calls when she wants to borrow something or needs a favor. "What can I do for you?" you ask instinctively. "I was just wondering ... " (this is the way she always begins when she is about to impose upon you) "I was just wondering if it would be OK to trim some branches and ivy from your redwood trees to let a little more light on my property. We'll do a nice job and leave you with a healthier grove." You look at your watch and wonder whether you can still make your bus. "Sure," you say, "that sounds fine."

That evening you head home, sure that everything will be fine. After all, what can go wrong with trimming a few trees? Then you see it --several wooden corpses strewn on the ground and another 100-year-old 100-foot specimen falling victim to the hungry chain saw even as you look on in horror. You order the tree cutters off your property and go inside to try and collect your thoughts. What can you do? What should you do? What are your rights? How can you be compensated for the damage? Did the tree cutters misunderstand or ignore your neighbor's instructions? Did your neighbor assume she could cut with impunity based on a brief telephone conversation? Who is at fault?

This all too familiar scenario plays itself out regularly in our neighborhoods, particularly in green belts such as Marin County. The victims, often ignorant of their rights, allow the injury to go uncompensated even when the damage is devastating.

Unauthorized tree cutting, the subject of specific legislation at the state and local level, can bring serious consequences. In our example, your neighbor may be subject to triple damages under California law. Even if she has mistakenly cut down the trees thinking that they were on her property, double damages are mandatory. The neighbor and her tree cutter can be liable for a variety of common law claims as well, including negligence, breach of contract, trespass, conversion, intentional infliction of emotional distress and even fraud.

What should you do if your trees have been cut without your permission? The preferred course of action is to resolve neighborhood disputes without litigation. Lawsuits can be time consuming, expensive, and emotionally draining. What's more, neighbors can be difficult to live with once you have dragged them through a legal battle.

But in order to attempt informal resolution, you need information. An expert in the valuation of trees, usually an arborist or urban forester, should be called in to assess the damages as soon after the event as possible. The expert you select should have a formal education in forest sciences and plant pathology. Once you know the value of your loss, you can approach your neighbor and request compensation. You may want to suggest mediation if you cannot agree on the dollar amount. Unfortunately, more often than not, such a request will be ignored unless it appears in a certified envelope on legal letterhead, implying that a lawsuit may follow. Avoiding litigation can be sufficient incentive for people (and their insurance companies) to settle a claim quickly and inexpensively.

If the normal "neighborly" approach doesn't work, you should be prepared to file a lawsuit fairly quickly. Although there is generally a three-year statute of limitations for most property damage cases, you don't want evidence to disappear, memories to fade and/or witnesses to evaporate. If you suspect a criminal act such as vandalism, you should also file a police report.

Is a lawsuit cost-effective in this type of a case? A qualified valuation expert can often establish damages in the thousands if not tens of thousands per tree, depending on a variety of factors. Even so-called "junk" trees, such as acacia and eucalyptus, can have substantial value. In our opening scenario involving several redwoods, damages can reach six figures when you double or triple the value. That does not include claims for discomfort and annoyance, emotional distress or possible punitive damages associated with the claims for trespass and fraud.

Several lessons are to be learned from this hypothetical case. If someone wants to cut trees on or near your property, you should have them specify precisely which trees they intend to cut, and how they intend to cut each of the trees --by trimming, topping or removing them. Those trees should be tagged so there can be no mistake about which ones will be worked on. If you have any doubts about how the cutting may affect either the condition or the value of your property, have your own tree expert give you an opinion. If possible, make arrangements to be home when the work is scheduled.

If you are the neighbor desiring to cut trees on or near someone else's property, obtain authorization in writing from every potential owner. Make sure you hire competent, reputable tree cutters who are licensed, bonded and insured. Ask for an affidavit of liability and workers' compensation insurance. Once you have tagged the trees, make sure your neighbors come and look at the work to be done even if they have already signed the written authorization. If you are having work done near your property line, it may not be a bad idea to have at least a partial survey performed so you know that the trees are in fact on your property. Even though a survey can be expensive, this may save you money and headaches in the long run.

As the adage goes, an ounce of prevention is worth a pound of cure. Many of these problems can be avoided with good communication between neighbors. Let your neighbors know whenever you plan on doing any work on your property even if it does not directly affect them. They will appreciate the information and will be encouraged to share their plans with you. Open and honest dialogue helps prevent the kinds of fear and suspicion that can lead to misunderstandings and bad blood.

Neighbors are not the only potential source of conflict regarding your trees. There are as many different local ordinances regarding trees and views as there are towns. For example, Tiburon, which values view over trees, can actually require you to cut down your trees if they are obstructing someone else's view, even if the trees were there long before your neighbors. (Sausalito and Belvedere have similar view ordinances.) Fairfax, on the other hand, which values trees above everything and everyone else, will not let you so much as look at a tree the wrong way without first obtaining a permit. Specifically, it is unlawful "to remove or destroy or alter any tree from any parcel of property without a permit", even if the tree is on your own property!

Then there are towns that require permits to remove, trim, or prune "heritage trees." In Novato, a heritage tree is one which has "a diameter of 24 inches or more (circumference of 75 inches or more), measured 24 inches above the ground." San Anselmo uses the above definition, or alternatively "a tree which has special significance and is of a species and size designated in a resolution adopted by the Council," not including acacia or any other tree designated as a "junk" tree. In Larkspur, a heritage tree is a tree "of historical significance" or "which has a trunk with a circumference of 50 inches or more."

To make matters even more complicated, one town's "undesirable" tree is another's "heritage." For example, Sausalito lists coast redwood as "undesirable," while redwoods are featured in Fairfax's preamble as a tree whose preservation is necessary for the "health and welfare of the citizens." Violation of some of the ordinances carries criminal and civil penalties, including fines, costs of restoration, community service and even imprisonment! Know your town's ordinances before you start cutting.

Whether you are the "victim" or the "perpetrator," you have a better chance of resolving the dispute with the advice of an attorney knowledgeable in this area of the law. Aside from advising you on your rights and remedies, an attorney can provide a candid, unbiased assessment of the potential liabilit. Because an attorney is not emotionally embroiled in the controversy she can offer perspective to an otherwise bitter feud. Remember the adage that the person who represents himself has a fool for a client.

© 1996 Barri Kaplan Bonapart

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