What are your legal options when an adjoining owner's trees (or other vegetation) are encroaching upon your property and causing damage?
According to a recent appellate case, New Yorkers may use "self-help" to correct the intrusion "if practicable." (That is, the actions you wish to take should occur on your property; trespassing upon your neighbor's land or otherwise violating the law must be avoided). If self-help can not be utilized without triggering some form of legal liability, an owner may then be forced to seek the court's assistance, but will be required to establish the existence of the following elements:
1) the existence of "sensible damage" --defined as "an injury to something other than plant life;"Interestingly, these standards were espoused by a lone dissenter (rather than the majority panel) in the case of Iny v. Collom, a decision issued by the Appellate Term, 9th and 10th Judicial Districts.
2) that the interference with the use and enjoyment of your land is substantial; and
3) that the neighbor's actions or omissions are "intentional or negligent" and "unreasonable."
The case involved adjoining landowners, Sol Iny and Robert Collom, who shared a common rear property line. The roots of a large tree growing on Collom's property caused the back wall of Iny's garage to crack (1 1/2 to 2 inches in width). Although Iny attempted to have Collom remove the tree--by sending a number of letters which offered to absorb the cost of the tree's removal--that effort proved futile. (We are also advised that Iny could not use "self help," since he was unable to reach the tree's roots without entering his neighbor's property.)
In a small claims suit filed in Nassau County District Court, Iny was awarded $2100 in damages. On appeal, the Appellate Term fashioned a creative remedy and dismissed the case on condition that Collom remove the offending tree within 60 days. (If he failed or refused to do so, the money judgment would be allowed to stand.)
While we can certainly appreciate the appellate court's unorthodox approach, we're not convinced that the decision achieved "substantial justice" under the circumstances. For example, it is unclear how the tree's removal would make Iny whole; particularly in light of the evidence that he had suffered damage to his garage wall. Even if the tree were timely removed, the crack in Mr. Iny's wall would remain. Alternatively, if the tree were left in place, wouldn't the structural deterioration continue unabated?
In a dissent, Justice Lippman indicated that it was his belief that the money judgment should not have been disturbed on appeal. In a lengthy legal analysis of "private nuisance," the dissenter struggled with the "paucity" of cases "involving trees and plant life," but ultimately concluded that the District Court correctly applied the law:
In this case, the trial court properly found that plaintiff had satisfied all the essential elements for a nuisance cause of action ... The requirement that plaintiff first resort to self-help was satisfied based on the trial court's finding that self-help was impracticable under the circumstances ... The large crack (1 1/2 - 2 inches wide) in the garage wall and the possible instability of the garage wall satisfied the "sensible damage" requirement to property other than plant life ... the intentional nature of defendant's actions was established by plaintiff's notification to defendant that the roots were damaging plaintiff's garage wall, and by defendant's denial of plaintiff's request to remove the tree at plaintiff's expense, or to otherwise abate the nuisance ... Finally, the court properly weighed the character of the neighborhood, the nature of the defendant's and plaintiff's alleged harms and the equities involved in rendering its determination that defendant's tree was causing a substantial interference with plaintiff's use and enjoyment of his property ....In view of the dissent, the parties may appeal the outcome of this case to the Appellate Division, Second Department.
Quite a lot of tsuris over a tree, wouldn't you agree?
For a copy of the Appellate Term's decision in Iny v. Collom, please click on the following link:
For a copy of the Nassau County District Court's decision in this case, please click on the following link: