Ask the Law Guy

I live in a private, gated community governed by a homeowners association with strict property deeds with covenants and restrictions. .... He has a large live oak tree that is on his property ... that he refuses to maintain (refuses to trim branches) and refuses to treat the carpenter ants and termites that live in the tree trunk. After futile attempts to get him to care for his tree, I sent a letter of complaint to the homeowners assocation asking them to enforce our deed restrictions that do not allow any homeowner to have an infested tree that is not maintained. I had my tree company trim back his branches that were in my yard and have damaged my lawn and shrubs. I also used my tree/lawn fertilizer company to treat his tree for carpenter ants. My neighbor threatened to sue me .... The homeowner's association backed my neighbor stating I needed to create a barrier around my property to keep his carpenter ants from invading. Furthermore, I was told by the property manager that I was not allowed to trim my neighbor's branches that were in my yard.

I have continued to write a letter of complaint yearly stating the same complaint about my neighbor's diseased tree .... Each time I was told that I was not allowed to touch my neighbor's tree, not allowed to trim his branches that are over my property line and not allowed to treat the caprtenter ants or termites.

We recently had a named hurricane with category 2 wind gusts ... Many of his diseased live oak tree large branches fell into my yard, smashed several sections of my cement driveway, smashed several of the cement sidewalk sections in front of my property, destroyed my cast iron custom made mailbox resulting in the USPS turning off my mail delivery until I have a working mailbox and has created a mess of my landscaping, and is in the road partially blocking traffic. ....

My neighbor refuses to take care of his diseased tree that is now partially overturned in my yard, refuses to acknowledge the damage his tree did (told me "shit happens"), refuses to clean the mess his tree has made in the street or sidewalks. ... The cost of tree removal ranges from $18,500 to $41,999. The real problem is the fact my neighbors tree is severely damaged from the carpenter ants inside. ... The tree company wants to remove the trunk and tree stump. The trunk and stump are on my neighbors property which I have been told that I am not allowed to touch by the HOA and my neighbor.

What type of lawyer do I need to hire? Could I be held liable if the tree causes more damage when we remove the fallen attached branches?... Thank you for any advice you may offer to a very frustrated homeowner. I enjoy reading your comments to variuos letters on your website.

With the kind of loss you are facing you will need to have a lawyer to get anything accomplished. I need to leave it to that lawyer to answer your questions after looking at the information you have gathered.

I am going to talk about how to go about choosing a lawyer. This is a garden-variety legal matter that any competent lawyer ought to be capable of handling. Think about it as having to replace the clutch in your car. All mechanics should be able to handle it. Most will get the work done no problem. There are always some who do shoddy work or take forever to get the job done. Ask around and see what the lawyer's reputation is before hiring the same way you would ask around to find a good mechanic.

You don't need a high-powered $300 per hour legal specialist to take care of this either. Most of that firepower would be wasted.

Finally consider money. Your neighbor's track record suggests he is unreasonable. It is unlikely that the case will be resolved with a letter or a phone call. If you considering hiring me I would probably tell you that I thought this could easily take 15-20 hours of attorney time to prepare the case for trial. That would include investigating the facts, researching the law, and engaging in some discovery. Attorney hourly rates vary widely but there is a good chance you could find someone who charges $100-$200 per hour. This means that you should expect to have to pay an attorney $3000 to $4000 minimum.

Experience matters but it is not everything. The most important factor is whether you have confidence in and trust the attorney you hire.

Good luck.


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