Small Claims Special Topics: Neighbor/Homeowner Problems

As a homeowner and landowner you acquire an absolute right to your own property, with certain exceptions. This means that no person can intrude upon your land unless you permit them, an easement exists, a common driveway exists, or zoning or local, state or federal law acquires an interest in your property through a legal process known as eminent domain.

For purposes of this discussion, if your problem concerns any process by which any governmental authority is seeking to take or intrude upon the use of your land, you should call the Legal Hotline for the number of your Plan Attorney. This is not usually a problem which can be handled in Small Claims Court.

The usual types of problems for discussion herein are the following:

• Tree disputes;
• Fence disputes; and
• Common driveways or access ways.

Trees protruding onto your property can cause undue stress and arguments between neighbors. The general rule is that if a neighbor's tree is causing actual problems with your property, or interfering with the use of your property, then you have certain rights as to that intrusion. Most states' laws place the burden and expense of properly pruning trees on the landowner on whose property the tree exists.

If your neighbor's tree is protruding into your back yard and hanging over your pool and blocking your sun, you should write a letter to that neighbor and inform him/her of the problem. You should be specific and polite as to the actual interference. You cannot force a neighbor to cut down an entire tree because one branch overhangs your property. And you should give your neighbor a reasonable chance to correct the problem.

A second follow-up letter to the neighbor, if the first is ignored, might help your case in court, if necessary. The second letter should attach a copy of the first letter, in the event your neighbor did not receive the first. Your second letter should also inform the neighbor that if he/she does not correct the intrusion, you will hire a company to correct the problem. In your letter, you should also enclose any estimates which you have received concerning the repairs which you will seek if the neighbor does not comply, and inform him/her that you will seek to recover these costs from him/her.

If this second letter is ignored, you will likely be judged at a later court date, if necessary, to have given adequate notice to your neighbor. Then you should hire one of the companies from whom you obtained the estimate and have the work performed. Once performed, you should send a letter to your neighbor requesting payment thereof, and including a copy of the bill.

If your neighbor decides to ignore this problem, send a second letter of demand, attaching a copy of the first letter and bill. The second letter may improve your case if you are forced to sue. Remember, your neighbor is not always responsible to pay the fees of the company you hired to cut down the tree, and you must still pay this company, even if your neighbor does not pay you.

If the neighbor refuses to pay after several days notice of a demand for payment, then you likely have a case on which you can proceed to court. Assuming the repairs were greater than $200 but less than the jurisdictional limits of the Small Claims Court, you can follow the procedures of the Small Claims Court and file a lawsuit.

One word of caution: You cannot force your neighbor to pay for trimming your entire yard, simply because one of his/her trees protruded. Also, you must be sure that the tree is not on your property, even if it is on the other side of a fence or other obstruction. Have a survey performed, to make sure you do not own the tree. Otherwise, your lawsuit may be dismissed.

Fences pose much the same problems as trees overhanging. Fences can be considered to be any type of boundary markers, including, wooden fences, bushes, trees, rocks, etc.

Again the general rule for fences is similar to trees. That is, you are entitled to place a fence of your choice on your own property so long as you do not cover or block any easements or rights-of-way already reserved, common driveways or walkways, the fence meets local height and other restrictions, and the fence does not intrude on your neighbors' property.

Normally, if we are talking about a wooden or concrete or brick fence the issues are simple. You should have a survey [or more than one if a serious doubt as to where the property line exists] performed to understand your boundaries. If a fence exists, but is on your neighbors side then technically he/she must maintain it. They can also paint it their choice of colors or replace it with their choice of materials, or choose not to replace it. However, they are restricted by rules which require any landowner to repair a dangerous condition, or not to create a nuisance. Painting the fence in hot pink on your side, or placing a mirrored surface which reflects the sun onto your property, may subject your neighbor to a lawsuit for nuisance, and resulting damages.

If the fence is on your side of the boundary, you have the same rights and obligations.

What if the fence is directly on the boundary line, or goes back and forth across the line? Whose responsibility is the fence? A technical interpretation would require that a judge order the person to maintain the fence whenever it is on the person's property, and only when it is on their property. However, judges often take a less technical view, based on the fence, the intrusion, the uses, and benefits received by each party, as well as other relevant factors, and arrive at some compromise situation. Often, both parties will be ordered to split the costs and bills for common fences.

What if the existing fence is in bad repair and lies directly on the boundary? Assume one party wants a brick fence and one party wants a wooden fence. As a landowner, one has a duty to attempt to compromise this situation with a neighbor. However, most judges will not order parties to pay costs of a boundary if they will not use the boundary. Thus, one party has the right to build his/her own type of fence, on their side of the line, and can choose to incur the cost for said fence. They will not, in most cases, be able to collect any money for this fence from an unwilling neighbor, nor will the fence be able to remain on the property of the unwilling neighbor. If you are incurring the total cost for the fence, be sure it is on your side of the property. Otherwise, the adjoining party might be able to remove the fence, even if it is new, and you might be forced to reimburse the adjoining party for his/her costs in its removal.

Fence disputes and lawsuits for the costs involved in maintaining, building and repairing fences are often excellent cases for Small Claims, provided the damages meet the jurisdictional requirements. If a fence repair, or replacement involves more than the Small Claims Court jurisdictional limits, you should consult your Plan Attorney before proceeding, so that you can be sure that you do not end up in a lawsuit costing thousands of dollars and taking many years to resolve.

Points to Remember

• TREES
  • Start with a letter to your neighbor about the tree that is intruding on your property.
  • If the first letter is ignored, send a second letter with a copy of the first letter. The second letter should indicate that you will hire a company to correct the problem if the neighbor fails to respond.
  • Send a demand letter with a copy of the bill to the neighbor for payment.
  • You are responsible to pay the company that performed the work.
• FENCES
  • Fences are considered to be any type of boundary markers including wooden fences, bushes, tress, rocks, etc.
  • If a fence is wholly on one person's property, that person must maintain that fence.
  • Have a survey done before erecting any fence to determine the boundary line.
  • Fence disputes are often excellent cases for Small Claims Court.