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Question DetailsAsked on 8/24/2016

A neighbors palm tree has broken our fence and refuses to remove tree or fix fence. What can i do

Our neighbor put in a Palm tree less than a year go in his backyard right up against our fence. It has grown and now broke the fence post. The fence is bowing out. He has a pit bull dog. He refuse to remove the tree or fix the fence. What can I do?

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Depends on your state, but generally tree growth into your yard is considered your problem - and in many states if your action will irreparably damage the tree (likely if you have to cut the side off the trunk) you have a legal notice requirement to give him time to fix it himself before you take it on.

In some states not requiring such notice, or after such notice and waiting period (commonly 2 weeks) in those states requiring it, you could use a chainsaw or sawzall to slab the face of the tree at the property line. Poisoning the tree by injecting concentrated glycophosphate week and shrub killer into the roots or tree would be illegal in most if not all states.

In other states/areas, this would be considered (in a court action) to be a nuisance, and you could force him to abate it (remove or move it and fix the fence). In most states this sort of action requirses damage beyond just growing into or over the neighboring yard - but in your case it has damaged the fence and likely has or imminently will breach the privacy and security of your fence (expecially considering the pit bull), so you can show actual damasge and impact from the tree aside from it growing over the line and shading your yard, which would be considered normal tree behavior and normally is not actionable.

Can also be tough to get a Tree Service company to do this sort of property line work, because of the liability risk - sometimes you have to get a court order for him to remedy the issue or to allow you to do so.

Another issue - you would have to establish for certain that it is actually infringing on your property - the fence might be on his property, shared property - or on yours. So generally you would have to pay a Land Surveyor a couple hundred $ to mark the property line on the tree (and preferably a couple of pounded-in wood on-line hubs on eash side as well as a more permanent property line marking. Be sure to advise the surveyor you are looking for definitive property line location for an action, not just rough location - GPS location of the line and corners is not accurate enough for this as it can be off by several inches or more.

The pit bull, assuming it is aggressive or actively defensive at the fenceline (so you can't reasonably remove a few boards, cut the tree back, then fix the fence), might also require a court order that he restrain the dog while the work is being done.

One other alternative than the hassle and cost of court action - assumin gthe fence is totally on your side of the fence, have new posts put in on both sides of the tree (say 3 feet or so away on each side so tree will not grow into them) and a new post on your side of the tree a couple of feet, and put in a jog-around on the fence - though that does invoke a risk that he will claim adverse possession down the road so you would need to officially issue him a notice that you are not recognizing adverse possession of that little jog-out on his side of the fence.

Another alternative - put in the new posts offset to each side a couple of feet, and use chain-link fence in that section (possibly with woven-in privacy strips) between the two posts - generally a tree will grow around the chain link fencing, leaving the fence relatively straight (will bow a bit your way) and letting the tree grow into your yard. Again, letting this happen with a tree that started totally on his side may result in possible ownership problems - generally a tree growing over the line is or becomes the joint property of both owners, who then have to cooperate in its care and maintenance, including cost-sharing if it falls down or such. Not a real desireable situation.

If you do anything involving legal notice or such, I would advise having an attorney write it up and deliver it - not only does that ensure, for a couple or few hundred $, that it is handled legally, but also gives independent proof of delivery to him. Better than a lawsuit from the neighbor down the road because of your action.

Here is a link to another similar question, with links to a bunch more FYI -

Answered 3 years ago by LCD

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