My Fallen Tree & Neighbor Altercation
This is a story about my interaction with Steve (full name is hidden on purpose) who just happens to be a Judicial District Judge in Colorado. When I was first introduced via e-mail to Steve, I had no idea that he was a district judge. Anyway here is my story:
As background, we had a huge heavy wet snow storm in Parker Colorado on April 29, 2017. The heavy wet snow was devastating to many of the area trees as it cracked limbs and fell trees. Not to mention the damage to all the sprinkler systems in the area. Being a landlord of several homes, the problem was exponential for me.
On 5/1/17, my tenant sent me an e-mail providing me with Steve's name, e-mail, and phone number. She explained that Steve knocked on her door to explain that one of our tree limbs had broken and fallen on his property that abutted to my property. Upon receiving the e-mail, I thought - cool, this is a good opportunity to meet my neighbor and work together to rectify this problem. As such, I stent Stephen Collins an e-mail reiterating the request as I heard it, asking his address, a picture, and a good time to stop by. He quickly responded regarding his availability and also mentioned that one of my trees was impacting another neighbor, which I had not heard about.
Again, I'm feeling overwhelmed due to other tenant calls (sprinklers, trees, etc.) and then it dawns on me - Is it really my responsibility to remove a tree limb that fell due to an act of God on a neighbor's property? To answer this question, I quickly do several searches on Google and find discussion boards and law websites stating that it is generally my neighbor's responsibility unless I was negligent and knew or should have known that the tree would fall. As a result, irritated that he was playing tree police for the neighbor, sent him a short e-mail stating my findings. Here is the exact e-mail I sent:
I did some research and it appears that ownership is 9/10th of the law, meaning you need to dispose of the tree limb that fell in your yard due to the recent storm or act of God even if it originated from a tree in my yard.
Ok, perhaps I should not have said the 9/10th of the law part. Again, I had no idea this was an attorney. Nonetheless, I did not sleep well that night feeling guilty that I was not even offering to help. As a result, first thing in the morning I sent the following e-mail:
I've been contemplating this situation. I've never had a neighbor request that I remove a limb fallen from a storm. If you'd like, I'm willing to cut up the limb with my chainsaw if you are willing to dispose of it. Disposing of it might entail slowly adding the pieces to your trash until it is all gone. Please advise if you would appreciate this assistance from me. This feels like a fair resolution to me. Please advise.
Shortly after the previous e-mail Steve responds as follows:
"Mike. I was surprised by your emails. I am well aware of the law. I think the problem may be that I haven't fully explained the situation. This isn't simply a case of a branch breaking off from your tree and falling onto our property. Rather, the branch in question has pulled away from the trunk and fallen onto our property (crushing part of our lilac) while still being attached to your tree (another branch is dangling over Nate and Jamie's yard). I'm sending photos by separate email. These semi-detached branches are a safety hazard for both us and your renters. You will need to have someone come and detach the branches in a way that doesn't cause further damage to our property. I assume that once they detach the branches they will dispose of them. Please let me know how you intend to proceed.
I then receive the pictures and it is dramatic. Per the pictures, it appears that the limb is quite large and the break is very high in the tree. I'm thinking, this can't be cut down by me or a professional. It's too dangerous. As such, I respond as follows:
"Yikes. I don't think that I can safely detach those. They are way too high. My guess is that we'll have to wait until they detach naturally. Do you have any ideas?"
I feel a natural fall is reasonable since the fall would be in an area that nobody walks. It's an area thick with bushes and trees. Consider the alternative, I climb an extension ladder and break my neck. Anyway, this is the thoughts going through my head.
Steve responds as follow:
"Mike, I'm not comfortable having the branches continue to dangle over our property. They create a safety risk and a nuisance that needs to be abated. They need to be removed by someone who knows how to do so without causing further damage to our property. I think you need to have a tree company come out and remove the broken limbs.
This message irritated me... Was it his right to demand that I hire a professional? Also, "safety risk" - nobody goes in that area. "Nuisance" - this guy sounds litigious. Alright, I think to myself, I did my research, it's time for me to lean on my research and really tell this guy what I think. As a result, I send the following e-mail:
"You are welcome to cut any of my limbs that extend beyond our fence line onto your property as long as it does not damage my tree.
Yup, that was going to be the end of this problem for me. I had plenty of other problems to deal with. Well - I thought wrong. After a lull in e-mail communications, I receive the following e-mail message from Steve on May 2, 2017:
"Mike, I was taken aback by the emails that I received from you earlier today. Based on your prompt response to our initial contact with your renters I believed that you were going to act as a good neighbor and take care of the problem caused by your tree. I was surprised and disappointed when you changed your approach. Your statement that, based on your research, "it appears that ownership is 9/10th of the law, meaning that [I] need to dispose of the tree limb that feel in [my[ yard due to the recent storm or act of God even if it originated from a tree in [your] yard" was inconsistent with my recollection of the law from law school. I have now been able to do some legal research and have confirmed my understanding that where, as in this case, an owner of land is aware or should be aware that a tree on his property is intruding upon, or otherwise presents a danger to, the adjoining property or persons thereon the landowner has a duty to abate the nuisance and will be held liable for damages caused by the fall of the tree or a limb therefrom. See, e.g., Allen v. Simon, 888 So.2d 1140 (La. Ct. App. 2004) (Act of God does not absolve an owner of tree of responsibility from removing the fallen tree from his neighbor's property); Brown v. Williams, 850 So.2d 566 (La. Ct. App. 2003); Lewis v. Krussel, 2 P.3d 488 (Wash. App. 2000); Israel v Carolina Bar-B-Que, Inc., 356 SE2d 123 (S.C. App. 1987); Cornett v. Agee, 237 SE2d 522 (Ga. App. 1977); Barker v. Brown, 340 A2d 566 (Pa. Sup. Ct. 1975); Rocoe v McGee, 168 SE2d 77 (N.C. App. 1969); Farbe v Klien, 187 So.2d 467 (La. App. 1966); Kurtigian v. Worcester, 203 NE2d 692 (Mass. 1965). Recoverable damages include loss of use and enjoyment of the property, cost of repairs and cost of removal of the tree. See, e.g., Farbe, supra.
Based on my research, I think that it is likely that you would be responsible for removing the limb from our property even if it was fully detached from your tree. We do not, however, need to address that issue. Rather, in this case, the limb in question clearly is still attached to your tree on your property. It also clearly is intruding into our property and has, in fact, crushed our 25 year old lilac bush. It is both a continuing nuisance and a continuing safety risk for both us and your renters. The only way to abate the continuing nuisance and safety risk, and prevent the limb from becoming fully detached and falling onto our property and causing more damage, is for a trained professional to enter onto your property and properly remove the limb from your tree. Based on our recent email exchange, including the pictures that I emailed to you, you are on certainly are on actual notice of this ongoing nuisance and safety risk and it is your responsibility to abate it.
The timing of this is unfortunate. We are in the process of putting our house up for sale. The photographer is coming to take pictures on Friday, and we are scheduled to be put into the MLS on Thursday, May 11, 2017. Our first open house is scheduled for Saturday, May 13, 2017. If this continuing nuisance and safety risk is not abated before the open house it certainly will result in lower offers than we otherwise would have received. If that takes place, we will have no alternative but to hold you responsible for the resulting damages.
I had hoped that you would recognize your obligations (both moral and legal) and voluntarily take the steps necessary to abate this ongoing nuisance. I am disappointed that, to date, you have refused to do so. Please consider this email to be a formal demand that you take the steps necessary to abate this nuisance immediately. If you fail to do so, we will pursue legal action. I hope that will not be necessary, but that is up to you.
Please advise me regarding how you intend to proceed by 5pm on Wednesday May 3, 2017.
Back up...Did he just say "inconsistent with my recollection of the law from law school". Oh great! Is he still practicing law? What is his area of expertise? Is he bluffing? Am I being intimidated? Are the cases he shared relevant to Colorado? At that point, I should have dug around to find out who this guy was. No, I didn't do that. I was too busy with other problems so I quickly sent off this e-mail on May 2, 2017:
As you know, tree damage is extensive throughout the entire Denver area and every tree expert is going to be booked out. To hire a professional, it will take time to find someone that is properly trained and insured. It's possible that even a professional will say that pulling the limb down from the source is not possible. In summary, your tight deadline is unreasonable and I can't be held responsible that the snow damage occurred this weekend and you just happen to be taking pictures Friday with an open house on Saturday. I'm taken back by your unreasonableness and desire to cause me undue stress.
Also, do you have any tree case law from Colorado? It seems odd that Colorado law would require me to access your private property to remove a tree branch. What if you charge me with trespassing? What if the professional gets hurt in the process and it is on your property? Can they sue you? Will you sue me? Obviously, your litigious attitude has me concerned and will require me to approach this situation cautiously.
Please note that I offered to meet you to see if we could rectify the problem ourselves without the a professional. You have dismissed that offer and assumed this could only be handled by a tree professional. I don't typically hire out things that I can do myself.
How high above the fence line is the tree limb that needs to be cut? My guess is that I can cut the limb at that point and we could then work together to cut up your branch. Are you willing to work with me on this problem?
Steven then responds as follows:
"Mike, I was willing to work with you as a good neighbor while you took the steps necessary to properly remedy the problem. That is why I was so surprised and disappointed when you advised me yesterday morning that you felt you were not responsible for removing the limb from our property. For the reasons explained in my last email, I continue to believe that you are legally responsible for solving this problem (I have not found any Colorado case directly on point, but I am comfortable that Colorado would follow the myriad of other jurisdictions that have held that it is the tree owners responsibility to abate a continuing nuisance).
I'm not an arborist, but I don't believe that you can safely remove the semi-detached limb yourself. The damage is too high and appears to me to be too extensive for that. I believe that you will need to have a reputable tree company do the job. That being said, you are welcome to try to remove the semi-detached limb yourself if you wish to do so. I will give you access to our back yard as long as you agree that you are doing this at your own risk and that we have no responsibility for any injuries or other damages that you cause or incur in connection with your efforts to remove the limb. I started a trial yesterday and will be in Court the rest of the week. I could, however, meet with you at our house after work any day this week. Time is of the essence given our upcoming open house on Saturday May 13 (I understand that is unlikely that the limb can be removed by this Friday, but I think it could be done by May 13 if you contact a reputable tree company today or tomorrow).
I have no desire to sue you. However, if you do not accept responsibility and promptly take whatever steps are necessary to properly (and safely) remove the semi-detached limb from our property you will give me no alternative but to seek a Court Order requiring you to abate the continuing nuisance. If that becomes necessary I will, of course, also seek to recover monetary damages, costs and attorney fees. I hope that taking such action does not become necessary, but that is up to you.
Please advise me how you want to proceed.
Well, the situation seems to have diffused. I've been educated by Steve and it appears the tree branch is solely my responsibility. Based on the information, generously shared by Steve, it appears I have to remove and dispose of the tree without any assistance from my good neighbor Steve.
That said, I was surprised that Steve would bring the hammer down on me so hard. It's amazing how, as a citizen, he feels that the snow storm and fallen limb could give him the right to sue me if his home's sale process was negatively impacted by the limb. That seemed like a pretty big stretch to me. It was at this point, that I pieced together the Steve Collins is actually F. Steve the 18th Judicial District Judge in Colorado. Even if he was stretching to find case law that was against me, who wants to go against someone that is licensed to practice law and who hangs out with other blood sucking attorneysJ. Yup, Steve didn't mess around when it came to putting me in my rightful place... In hindsight, one of us should have probably just picked up the phone suggested that we meet in person to discuss the situation. That might have helped the conversation from going explosive. Excuse me now as I go look for my chainsaw:).
Update: I arrived on site and was greeted by Steve's wife Diane. She asked what I planned to do and I advised her that I planned to remove the branch that was crushing their bush. She immediately responded that she was uncomfortable with me proceeding and stated that the job should be completed by a professional. I assured her that everything would be ok and that she could watch and stop me at any time she wanted to discuss my approach. After a few cuts, Diane offered me access to her property and provided some good suggestions. A few hours later, Steve arrived home from work and provided some assistance, too. In the end, they were both very nice people and the job was completed without exception. Later that night, Steve sent me the following e-mail, which I thought was very thoughtful:
"Mike, Thank you for coming over and taking care of the falling tree limbs. I must admit that I didn't think that there was a chance in the world that you could do it yourself. I hope you aren't too sore tomorrow!
I'm sorry we had miscommunications earlier. I guess it shows that it is better to talk than email.