Tuesday, August 22, 2006

TROUBLE ON THE BORDER

By Dotty E. LeMieux

No this isn’t about immigration or the Israeli-Palestine question. The border is closer to home and one that affects all of us as homeowners.

It’s the boundary line between you and your neighbors, and it has been scene of as many pitted battles as any international border between warring states.

Simple as ivy on the wall or water under the fence, or complex as dual ownership of boundary trees or uncertainty over where the property line really is, these spats can turn into deadly feuds, reminiscent of the legendary Hatfields and McCoys of West Virginia and Eastern Kentucky Hill Country.

Although neighbor battles don’t usually result in bloodshed, they can be lethal for trees, shrubs and other vegetation, as many hapless property owners have learned.

“The Fruit of the Poison Tree”

Any one who has experience with Criminal Law knows that expression coined to cover information gathered in an illegal search or seizure. In the context of neighbor disputes, it can often be quite literal. Neighbors have been known to spike trees whose overhanging limbs dropped debris into their yard with herbicides, to sprinkle poison over fences to kill neighbors’ prized azaleas and even to lob strychnine laced hamburger to quiet a barking dog.

These acts are all illegal, and can result in severe penalties, possibly even criminal sanctions.

More common are the cases of lethal wounds to encroaching roots or overhanging limbs. If your neighbor’s tree is overhanging your property or its roots pushing through the fence and surfacing under your garden walk, there are measures you can take, short of murder.

Root and branches may be trimmed to the property line so long as the trimming does not damage the structural integrity of the tree. You need a trained professional to assess this. Do it yourselfers should proceed with caution.

As I always advise my clients, talk to the neighbors first; they may not be aware that their beloved pine tree is driving you crazy with windfall and pine needles.

Trees that Straddle the Fence

A situation that sometimes occurs is that of trees whose trunks are on both sides of the property line. These are known as boundary trees and pose unique problems, since each neighbor is mutually responsibly for their care and upkeep, and responsible for any liabilities.

Problems arise when neighbors disagree about the care of a boundary tree. When one neighbor’s view is blocked by a rapidly growing tree, while the other values the privacy the tree provides, an impasse is often the result. Neither neighbor can take unilateral action. If a tree is diseased and threatening to fall on one neighbor’s house and the other neighbor refuses to have it removed, the first neighbor may be forced to sue the other for his half of the cost.

Get a good appraisal of the health of the tree and cost to remediate the problem or remove the tree. Think about panting replacements that you and the neighbor both choose. If you go in with well developed information and a plan to keep a good relationship with your neighbor, chances are he will be more amenable to your desires, especially if you offer to pay more than your half of the cost.

The Case of the Missing Boundary Line

You buy an older house in a nice neighborhood with the help of a reputable realtor. You have your deed, the description of your land and the 1942 subdivision map. You decide to repair the sagging wire fence on the property line with a nice redwood plank one. You start putting up your fence posts, only to be greeted with a shout of protest from your neighbor. What’s happening? He just had a survey done to determine the setback so he could enlarge his home, and guess what? What you thought was the property line, wasn’t.

“But” you sputter, “My realtor said this fence marked the property line.” Thought is the operative word. Unless you have a survey of your own showing conclusively that the fence does mark the line, you may be out of luck. The lesson? Don’t rely on out of date subdivision maps. Make sure you know just where your property starts and ends, on the ground, not on a map.

Wandering Cats, Dogs and Vegetation

Your neighbor’s overgrown Tom cat Fluffy has taken to stalking your own Foo Foo, who likes to preen herself in the sun, but now is forced to take refuge in the house whenever that mean old Fluffy comes prowling around. And he doesn’t just say hello either; he caterwauls and leaves messy calling cards. You complain to your neighbor and demand he do something about his wayward pet. But he ignores you, shocked that anyone would consider his precious Fluffy less than loveable.

Meanwhile, the neighbors on the other side leave their home under the protection of Spike, a yappy little teacup sized dog whose constant shrilling is driving you to drink.

Not only that, the Ivy they planted as an easy to maintain border is now enveloping your side of the fence, threatening to strangle the wisteria and honeysuckle you’ve been cultivating.

What is a hapless homeowner to do? First check your town’s cat and dog ordinances. Many Towns and Counties have ordinances restricting the number of cats or dogs that may be kept, noise and nuisance ordinances. There are also ordinances providing sanctions for “dangerous” dogs. And mediation is always an option. The County of Marin has a pet mediator, just for these occasions. There is not, to my knowledge, any plant mediator, but maybe there ought to be.

The ivy can be cut back by you to the fence line and if all of these problems persist, consult an attorney specializing in neighbor law or check with the excellent Nolo Press book of the same title. (Go to www.nolo.com to see about ordering it and other excellent self-help legal guides.)

A Note about Noise

Neighbors and noise go together like picnics and ants, summer and sunburns. Unless you live a long way out in the country miles from the nearest human habitation, you’re going to get noise pollution. Chain saws, weed whackers, children’s parties, loud stereos and barking dogs come with suburban life.

But there’s no reason to suffer in silence. Again, talk to the noise neighbors, nicely. Keep your voice low so they’ll get the message. And if they don’t, there are laws that regulate the noise level in neighborhoods.

An example of noises to be avoided is contained in the San Rafael Municipal Code, section 8.13.030 (Loud or unusual noises prohibited):

“No person shall maintain, emit or make, or cause, suffer or permit to be maintained, emitted or made, any noise or sound produced by human, animal, mechanical or other means, which by reason of its raucous or nerve-wracking nature, shall disturb the peace or comfort or be injurious to the health of any person or person”

That just about says it all. Wracked nerves, disturbed peace and neighbor issues generally are the stuff of local law enforcement daily life. Just read the sheriff’s calls in small town papers like the Pt. Reyes Light and you’ll see that you are not alone win having Troubles on the Border.

Dotty E. LeMieux is an attorney specializing in tree, neighbor and environmental law in San Rafael. She may be reached at coastlaw@earthlink.com

Published in Marinscope papers, real estate section, August, 2006

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