Questions about neighbor's tree surgeon

[fappyheet.livejournal.com]

I have a question that relates to neighbors and contract work. A fence separates our back yard from the (non-resident landlord) neighbor's yard. There's a tall tree on his side with foliage sufficient to shade both yards. Up until this story, the limbs have been long enough to reach our roof. One of our neighbor's tenants (who we chat with occasionally) does landscaping work. In the spring, this tenant pointed out how the branches from the neighbor's tree could rub against our roof and damage it. The gist of the conversation was "we wouldn't a tree of ours to damage your roof, so it should be trimmed back." I thought that made sense and said to go ahead and trim. During the summer, he came by a few times and used the landlord's ladder to trim branches above our roof and that of an adjacent neighbor. I assisted once or twice with cleanup and holding the ladder.

Last week, I heard that he was done and thought, "Great! No more evil tree branches." Last weekend, the tenant put a hand-written bill for "tree surgery" in our mailbox. It surprised us, given that we'd never contracted with him, just agreed to the request for access to trimming the branches. We haven't responded yet, since I'd rather know where we stand legally. Plus, we got along well enough as neighbors and I don't want to sour that unnecessarily.

There are two easy questions:
1) If a tree trunk is on your property, are you responsible for the foliage? I know there are "air rights" for buildings, but this strikes me as different, since the branches really could damage our roof.
2) Am I free to reject the bill, given there was no advance agreement for services? I've confirmed no one else in the building agreed to payment or any compensation. If anything, we allowed it BECAUSE it wouldn't cost us anything, otherwise we would've vetted him professionally first.

Muchos gracias!

(Checked through the "gardening" and "legal" DS archives with no luck, other than an entertaining conversation about Tom Champion's search for a tree surgeon.)

Comments

[truered.livejournal.com]

I'm not positive, but I believe that if the tree is not on your property, you are not responsible for it. The owner of the property with the tree on it should pay the bill. In fact, if the branches were overgrown to the point of causing potential damage to your home, then you could have taken legal action against the owner of the tree to force the owner to cut them back (I believe something along the lines of trespass to property).

In any case, I would advise the tenant that he needs to have the landlord pay the bill, as he is the one responsible for maintaining the tree.

[eeyorecol.livejournal.com]

I just posed this situation to my husband (who is a lawyer) and his immediate reply was "Wow - that's a bar exam question"

Basically, you should probably ask a land use or property lawyer who would specialize in something like that to know what the law is in this case. There are property questions and landlord/tenant questions involved here, as well as the contract question, so it's a very complex situation. I'm sorry that I couldn't be of more help.

[balsamicdragon.livejournal.com]

Wow, that is totally a bar exam question! Off the top of my head, I think that the tree is his landlord's responsibility, and since you had no agreement for services and payment, you don't owe him any money.

If this was really a bar exam, I would now have to get into a detailed discussion of trespass... but I don't think I will this morning :)

[purpless77.livejournal.com]

I'm not an expert, but it appears that you don't have to pay anything.
I do know that it is the responsibility of the person who has the bark on their property to remove branches interfering with the neighboring homes. However, in your case it was you who "hired" this guy to do the job and not the "owners" of the tree. That in itself could put you in a big wrong since it isn't your tree. You or your landowner is supposed to get in contact with the tee "owner" about doing something about the tree.
If he is to bill someone it's the person who "hired" him, which is you. But if there was no contract he has no proof he was even the one who did the work. So it's pretty much his word against yours. I can understand him wanting some compensation for his work but he should have discussed that with your prior to him doing the work. But it was never brought up. If you feel you'd like to compensate him for his work, that is really up to you. If he pushes the matter it might make for an unfriendly situation but he was at fault for not bringing up the topic of compensation and a contract.

Like I said I'm not an expert, just someone who knws landowners who have had tree/neighbor situations just like this.

[derekp.livejournal.com]

I am not a lawyer and I can't comment on weather the original poster has to pay the bill or not.

However, I believe you are within your rights in Massachusetts to trim anything that is on your property - weather it originates from there or not. We were told we could basically chop our neighbors tree off at the property line if we wanted to. The neighborly thing to do is ask, but I don't think the OP is in any danger from having trimmed branches of a neighbors tree that were touching his roof.

[purpless77.livejournal.com]

I said,
"That in itself COULD put you in the wrong". Since I was unsure on that I didn't say "does".

I know some homeowners who have gone through this so I was aware of most of the standards.

[mderidder.livejournal.com]

we have been in a similar situation, but where our neighbor asked us to trim branches on our tree that were touching his house. Basically, my understanding is that if it's on your property it's your responsibility.

[chaiya.livejournal.com]

We trimmed the tree that's on the property line with our neighbors. Nobody billed anybody else, though. I think that if they didn't talk about billing beforehand, you should say that to them and that you wouldn't have had them do it if you knew they were going to expect payment.

[fappyheet.livejournal.com]

Thanks for the comments so far! Funny that this kind of thing would be a bar question. Full of subtlety and grey areas, perhaps?

To clarify on who put our neighbor on the tree, we've been in contact with the landlord off and on during the year. (He was in involved personally in a conversation about the trees back in the spring.) We were under the impression that the LANDLORD agreed with his tenant to do the tree-trimming as a cost-saving maneuver and we just agreed--whatever that implies--to let him put the ladder on our property to reach the branches.

I'll give a call to the landlord tonight just to clarify that point. Perhaps we've both been billed! :)

[purpless77.livejournal.com]

Since the landlord was involved in this, it is his landlord who would have to pay him, not you. If he didn't have a contract with his landlord then even his landlord most likely, doesn't have to pay. I would speak with the neighbor either in person or by phone and respectfully explain to him that it is not your responsibility to pay him. That it is his landlords responsibility and to take the matter up with her/him. He really can't do anything to you legally so if he tried to make waves, I'd make him aware of that then wash your hands of the matter.

[303-5.livejournal.com]

Standard disclaimer: I am not providing legal advice. The following is offered merely as off-the-cuff thoughts and recollections in response to your questions:

1) At my previous residence, I faced a similar issue where we had a problem with branches from our neighbors tree hanging over our roof. To my surprise, my research led me to the understanding that Massachusetts follows the rule that you are responsible for branches overhanging your property (many other states would place responsibility on the owner of the property where the tree enters the ground--but not Massachusetts)--those are my own words and likely do not precisely match the statutes/caselaw. Consequently, we paid to have the branches of our neighbor's tree trimmed. Though if they had offered as good neighbors to have the tree trimmed (and to pay for it), we certainly would have allowed them onto our property to do so.

2) If you did not agree to pay for the work, it does not sound as though anyone could colorably argue that an agreement was reached that would bind you for payment. Two key elements of any contractual agreement are (a) offer and (b) acceptance. From what you described, you may have accepted an offer to permit the trimmming to be performed on your property (whereby you agree not to hold them liable for trespassing on your property), though I don't see any acceptance of an offer involving payment.

Just my 2c.

[303-5.livejournal.com]

Oh well, I see that josephineave posted a similar response, below, as I started typing.

[tfarrell.livejournal.com]

Tell him to bill his landlord, whose responsibility the tree is. You didn't ask him to do it, you merely permitted him to, and if you'd wanted to hire someone you'd have hired a professional tree surgeon, right?

If he presses the issue, bill him for your time spent assisting him - at $300 an hour, with a three hour daily minimum. (I believe the three hour minimum is mandated by law.) Offer to drop it if he'd like to do the same.

Or inform him that if he presses the issue you'll pay but you'll be suing his landlord for the same amount, plus the cost of your time spent assisting him, plus the cost of your time spent dealing with the lawsuit, and you will make certain his landlord knows that it's his fault so his landlord can bill him back for everything.

Or just forward his bill to his landlord.

Meanwhile if I were you I'd make sure he's not allowed back on your property (god only knows what he might decide to try to bill you for) and make sure his landlord knows that they *will* be providing *professional* tree trimming services in the future or be liable for any damages their tree may cause your roof. (see here. (http://www.lawlib.state.ma.us/trees.html))

[josephineave.livejournal.com]

As someone who joined with a neighbor to pay a bunch of money to have a huge tree removed from a similar location, I've done a wee bit of research, but most of it's stuff I grabbed off the internets.

Property owners are pretty much responsible for the limbs growing over their own properties. The original owner doesn't have any responsibility for those, unless the whole tree falls as a result of negligence. Just as the "air rights" owner has a right to trim any branches over the property, there would also be a corresponding responsibility to keep the limbs from doing damage. You can't hold your neighbor responsible for something you could very well fix yourself, especially since your neighbor would need your permission to proceed.

As to the bill, you probably don't have a contract. The only offer made was to cut down your branches. No mention was made of consideration. It's like me shoveling your driveway without your knowledge and then asking for $100. He qualifies as a bad businessman, if nothing else. But the work is related to his profession, so one might be able to make the argument that you were engaging him the same way you would engage a plumber, often not talking cost until after.

Legal obligation aside, you may want to pay him something, letting him know he did not discuss the circumstances or rates or anything other than cutting down the branches. You gave him permission to proceed and you were aware that the services offered were related to his profession. It's something that you would probably have to do in the future.

Or just call Judge Judy, since this is a good case for her (assuming you have some dimwitted relatives you can bring along to testify).

[perspicuity.livejournal.com]

the curious cat would like to know how much the bill IS... if it's low enough, in the spirit of keeping good neighbors, if it were me, i might offer to split it... given that you volunteered your time and services as well... hour many hours are involved?

also, you trimmed the other neighbor's airspace too... are they getting a bill?

he used your MAILbox? for a handwritten bill? why, isn't that a federal offense? ;) j/k, well, kinda :)

but it does sound like the air rights on your side of the fence are what was taken care of... the landlord on the other side has nothing to do with it. i'm assuming that "you all" own your side?

legally, well. mmm. i'd have to argue, that if the guy get's uppity, without rates being discussed, or a contract, or knowing if he has a license, or is bonded/insured... or ... he's got a slightly uphill battle to deal with.

#

[cos]

I don't think it matters who has legal responsibility for it in this case. If they were responsible, well then, they did it, fine. If you were responsible, you could've chose to hire someone to do it, or they could've requested that you do so. But neither of those happened. Instead someone just offerred to do it. As long as nobody objects to it having been done, legal responsibility seems entirely irrelevant.

You can pay if you think it'd be a good thing to do, or the work was worth it, or whatever, but since you never agreed to pay for the work, I doubt you have an actual obligation to pay.

[copperpoint.livejournal.com]

I would assume that regardless of who is actually legally responsible for the tree (though I am pretty sure that brances on your property are your responsibility, even if the tree is rooted somewhere else) there was never any agreement about payment. You didn't even have an oral agreement, let alone actual contract.
The cynic in me says get in touch with the landlord (and other tennants) and see if the guy is trying to get paid there, too.