neighbor law, fences trees boundaries and noise 4th (2001)

4th edition Neighbor Law Fences, Trees, Boundaries & Noise by Attorney Cora Jordan Keeping Up to Date To keep its books up to date, Nolo issues new printings and new editions periodi- cally. New printings reflect minor legal changes and technical corrections. New editions contain major legal changes, major text additions or major reorganizations. To find out if a later printing or edition of any Nolo book is available, call Nolo at 510-549-1976 or check our website: http://www.nolo.com. To stay current, follow the “Update” service at our website: http://www.nolo.com/ update. In another effort to help you use Nolo’s latest materials, we offer a 35% discount off the purchase of the new edition of your Nolo book when you turn in the cover of an earlier edition. (See the “Special Upgrade Offer” in the back of the book.) This book was last revised in: MAY 2001. FOURTH EDITION MAY 2001 Editor LISA SEDANO Illustrations LINDA ALLISON Cover Design JALEH DOANE Book Design TERRI HEARSH Proofreading ROBERT WELLS Index NANCY MULVANY Printing BERTELSMANN SERVICES, INC. Jordan, Cora, 1941- Neighbor law : fences, trees, boundaries & noise / by Cora Jordan, 4th ed. p. cm. Includes index. ISBN 0-87337-650-1 1. Adjoining landowners United States Popular works. 2. Boundaries (Estates) United States Popular works. 3. Fences Law and legislation United States Popular works. 4. Trees Law and legislation United States Popular works. I. Title. KF639.Z9J67 2001 346.7304'32 dc21 00-066201 Copyright © 1991, 1994, 1998 and 2001 by Cora Jordan. ALL RIGHTS RESERVED. Printed in the U.S.A. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the publisher and the author. Reproduction prohibitions do not apply to the forms contained in this product when reproduced for personal use. For information on bulk purchases or corporate premium sales, please contact the Special Sales Department. For academic sales or textbook adoptions, ask for Academic Sales. Call 800-955-4775 or write to Nolo, 950 Parker Street, Berkeley, CA 94710. Acknowledgments Thank you to the talented staff at Nolo for assistance with this book: Mary Randolph and Lisa Sedano, for editorial skill and kindness; Jake Warner, for the proposal that I write the book and his editorial aid; Steve Elias and Dave Middleton, for valuable suggestions and information; Ella Hirst, for her up- dating and contributions; Linda Allison, for imaginative illustrations; Terri Hearsh, for formatting the third edition of this book; Toni Ihara, for the ter- rific book cover; and Kate Thill, for hiring me in the first place. All of the people at Nolo have given me tremendous support and some- thing even more important—their friendships. My research was greatly aided by law librarians Herbert Cihak, Molly McCluer, Robert Podlech, Susanne Pierce Dyer and the late Dr. Ellis Tucker. Al LeFebvre contributed thorough research on adverse possession. For cheerfully educating me on various topics in this book, I am indebted to Tom Davis, Sondra Kennedy, Natalie Richmond, Buford Bryant, Hamp Dobbins, Mary Helen Russell, Andrew Reynolds, Professor Jim Clark, Dr. Lester Estes, Justin Wennerstrom and Erik Vink. Those who taught me the meaning of the word “neighbor” include Leslie Priester, Amna Mathis, Merle Miller, Dot Parsons, Klara and Ro Yee, Ann Martin, Ann and Frank Gilmore, Gwen and Neil Coleman, Alice Powers, Jan and Bill Reynolds, Diane and Bob Guyton and the late Anis Acree. Family members offered much appreciated encouragement. My husband, Win, supplied constant support and good humor, plus a full course in computer training. I extend special thanks to Dr. Roy Swank and Dr. Robert Cooper for managing my multiple sclerosis, and Dr. Richard Drewry for his determined success in restoring my eyesight. Foreword Like it or not, we’re all neighbors—and we ought to get better at it. With good neighborly relations, you can live more safely, comfortably, sociably and happily. Human beings, after all, are not solitary creatures like cats; we’re a sociable species, made for each other’s company. And in a period of our history when many of us live alone, or are single parents, a lack of good neighborly relations is likely to make life lonely, dangerous and expensive. The best periods of my own life have been when I lived on small streets where everybody knew everybody. We looked after each other’s kids; we sometimes shared potluck suppers; we picked up each other’s papers and mail; we loaned each other tools—and returned them immediately, knowing the ill will generated by irresponsible borrowing habits. Good neighbors share other things too: wisdom, time, vegetables, old car parts, you name it. They also share surveillance of their neighborhood. Neighborhood Watch programs are wonderful not only because they deter criminals, but because they get people together in the process of drawing up a neighborhood map and picking a block captain. Often they go on to have block parties and clean-up days, and work together to get the attention of city hall. But even citizens who know each other just informally and therefore tend to keep an eye on the street and on each other’s yards and houses are an enormously more effective force against crime than the police can ever be. They make it possible for small children’s lives to be freer of constant parental supervision; they can keep some rein on obstreperous teenagers. Being neighborly doesn’t mean poking your nose into your neighbor’s life or business (unless you’re asked, of course, and even then you should be cautious). There’s a fine practical line about privacy and noninterference that people have to learn to recognize. One of the best neighbors I ever had put this in a wonderfully wise way. We were confronting at the time a neighbor who had serious mental difficulties; she had in fact just come out of the mental hospital. She began tossing bottles off her porch to smash on the street at 2 a.m., while playing loud music through her open door, and one day she threatened some children with a hammer. For my neighbor George, that crossed the line. “What people do in their houses is their own business,” he said, “but when they come down on the street, it’s everybody’s business.” (We organized a sizable neighborhood delegation to call on the woman’s psychiatrist and discuss the problem, and got it resolved.) The magnificent positive potential of good neighborly relations, of course, is too seldom uppermost in our minds. We all tend to concentrate on the plentiful horror stories about neighbor conflicts. But it seems to be wiser to expect decent relationships with your neighbors; there is something about the very expectation that makes it more likely to happen. To be sure, there are in this world people so antagonistic, spiteful, bothersome, irresponsible or otherwise impossible to live near that no amount of rational foresight, flexible negotiation or even outright capitulation can bring their neighbors peace. Faced with such a situation, you have only the two alternatives of moving (which I would recommend) or trying to make their lives even more intolerable than yours, so that they move; this will not improve your character, and it probably won’t work either. Luckily, such extremes are rare. The ordinary run of neighbors presents an ordinary range of human delightfulness and orneriness; and most people share a quite natural desire to live in a state of reasonable peace with their neighbors. This desire is far more likely to prove effective if you know not only the commonsense human rules of treating other people decently, but also the specific laws that govern how neighbors (when push comes to legal shove) must treat each other. In neighborly relations, as in any other area of life, only an idiot goes to the law when friendly—or even not so friendly— negotiation and compromise are likely to solve a problem. Indeed, applying the law may “settle” a question between neighbors but in the process permanently embitter not only the contestants but other people who live nearby as well. It is also, of course, costly and chancy and likely to bring out the worst in everyone. But knowing the law can help all concerned to arrange reasonable solutions to neighborly problems in informal channels, either personally or through mediation. People sometimes behave with great certainty that the law is on their side and are surprised to find the situation is more compli- cated. What, for example, do you think you can legally do to a neighbor’s tree branch that overhangs your property, or with the fruit hanging on it? As I was astounded to learn, different legal rules apply; you had better know them before you get out your saw—or, more wisely still, discuss the situation with the neighbor before even thinking about the saw. Or suppose a neighbor’s teenager is using a garage for rock band rehearsals; what exactly can you do about it, short of cutting the electrical wires? This book lays out calmly and sensibly what everybody needs to know about such legalities of neighborhood life. If you tend to be a little hot- headed, it will cool you off. If you tend to give in on things too easily, it will strengthen your resolve. Read it and use it, remembering that what we all really need in our dealings with neighbors is not legal triumph or revenge but sanity, fairness and peace of mind. Ernest Callenbach Berkeley, California Table of Contents I Neighbors and Legal Questions 1 Help for Common Complaints Local Laws 1/3 Subdivision Rules 1/10 Additional Rights in Landlord-Tenant Situations 1/11 Approaching Your Neighbor 1/15 Using Mediation 1/15 Suing Your Neighbor 1/16 2 Noise Laws Against Noise 2/2 What to Do 2/12 3 When a Tree Is Injured or Destroyed Who Owns a Tree? 3/3 An Owner’s Rights When a Tree Is Damaged 3/3 What the Tree Owner Can Sue For 3/5 Criminal Penalties 3/12 What to Do If a Neighbor Damages Your Tree 3/13 Preventing Damage 3/19 4 Encroachment: Invading Branches and Roots Looking for Help 4/2 Trimming a Neighbor’s Tree: The Right of Self-Help 4/4 When a Neighbor Can Sue 4/8 Going to Court 4/12 5 Unsound Limbs and Trees Getting Help From the City Government 5/2 Trimming a Neighbor’s Tree: The Right of Self-Help 5/4 Talking to the Owner 5/4 Suing to Prevent Damage 5/7 Homeowners Insurance 5/8 After Damage From an Unsound Tree 5/9 6 Boundary Trees Ownership 6/2 Co-owners’ Responsibilities 6/5 Damage to or Removal of a Boundary Tree 6/10 7 Fruit and Nuts: Who Owns What? Who Owns the Tree? 7/2 Fruit That Has Fallen 7/5 Avoiding Problems 7/7 8 Obstruction of View The Basic Rule: No Right to a View 8/3 View Ordinances 8/4 Subdivision Rules That Protect Views 8/10 Other Laws That May Protect Views 8/14 Views That Are Not Legally Protected 8/18 Avoiding View Problems 8/21 9 Boundary Lines Settling Uncertain Boundary Lines 9/2 When a Neighbor Doesn’t Honor the Boundary 9/12 10 Using Another’s Land: Trespass and Easements Trespassers Who Become Owners 10/2 Easements 10/11 11 Fences Rural Areas: Fencing Livestock In or Out 11/2 Urban Fences 11/4 Property Line (Boundary) Fences 11/11 Disputes Over Boundaries 11/22 Sharing a Fence That Is Not on the Boundary 11/24 12 Spite Fences General Restrictions on Fence Height 12/2 What Is a Spite Fence? 12/3 Negotiating With the Neighbor 12/6 Going to Court 12/6 13 Dangers to Children: Attractive Nuisances The Attractive Nuisance Doctrine 13/2 Taking Necessary Precautions 13/6 Seeking Legal Help 13/8 14 Rural Neighbors and the Right to Farm Ordinary Nuisance Rules 14/2 Right-to-Farm Laws 14/3 What Neighbors Can Do 14/6 15 Water When the Neighbor Is Liable 15/3 When the Neighbor May Not Be Liable 15/6 What the Neighbor at Fault Must Pay For 15/10 What to Do If You Suffer Water Damage 15/12 Rights to Water 15/17 16 When Your Neighbor Is a Business Zoning Laws 16/4 Covenants, Conditions and Restrictions 16/7 Home-Based Businesses 16/8 Other Laws Protecting You and Your Property 16/10 Expect a Compromise 16/16 What to Do When the Law Favors You 16/16 When the Law Favors the Business 16/20 17 Legal Research Using the Internet 17/2 Local Laws 17/3 State Statutes 17/5 Case Law 17/10 Books Listing and Explaining Court Opinions 17/14 Finding Cases on the Internet 17/18 Other Resources 17/19 18 Tackling a Neighbor Problem Getting Prepared 18/2 Approaching the Problem Neighbor 18/5 Turning to the Authorities for Help 18/10 Going to Court 18/11 19 Mediation What Is Mediation? 19/2 How to Find a Mediator 19/3 How Mediation Works 19/4 20 Small Claims Court What Is Small Claims Court? 20/2 Preparing for Small Claims Court 20/4 How Small Claims Court Works 20/4 [...]... tenant’s own landlord can enforce the covenant of quiet enjoyment The most that your landlord can do is to appeal to the neighboring tenant and the neighboring landlord for some cooperation or, if this fails, take stronger measures as explained below Approach your landlord and explain the situation, asking for her intercession with the tenant and the next-door landlord A conscientious landlord will... area Many communities have free neighborhood mediation centers, designed to handle serious and not-so-serious neighbor disputes (Chapter 19, Mediation, has all the details.) 1/16 NEIGHBOR LAW Suing Your Neighbor If you can’t work things out with a neighbor or get help from the city, don’t give up You can sue the neighbor directly for money and for a judge’s order making the neighbor remedy the problem... most frequent grounds for serious neighbor disputes trees, fences, boundaries, easements and noise are covered in separate chapters in this book This chapter outlines a strategy for dealing with almost any other kind of neighbor problem, starting with friendly negotiation and, if truly necessary, going all the way to court We don’t have the pleasure of choosing our neighbors—they simply come with the... city hall The neighbor creating a problem might be located just over the zoning line, and be in an acceptable district for what she is doing Also be aware that in some circumstances, cities have the power to zone land that lies just beyond their boundaries In Illinois, for example, towns may zone land that lies up to one -and- a-half miles outside their boundaries (See Chapter 16, When Your Neighbor Is... for a neighbor And sadly, neighbors (even those who are the cause of the problem) sometimes retaliate when they feel threatened or disturbed, fueling what can escalate into open warfare But the law offers protection from a neighbor s disturbing activities Local laws and subdivision rules prohibit almost anything one neighbor can do that would seriously annoy another And when there isn’t a relevant law,. .. matter If the violation stands, the property owner is given five days to clean up the premises before the city does it and sends a bill.5 Most towns also require property owners to keep the sidewalks in front of their property clean.6 Loud and Offensive Language Loud and boisterous conduct is often prohibited in noise ordinances (See Chapter 2, Noise. ) If a neighbor is fighting and screaming, she is probably... example, see Oakland, Cal., Mun Code ch.8.24 In Oakland, disabled vehicles are covered in the blighted property chapter 17 For example, Albany, Cal., Mun Code § 20-2.6(c.6) 18 A group of neighbors actually forced a policy change at the San Francisco airport by collectively and repeatedly suing in small claims court about the noise C H A P T E R 2 Noise Laws Against Noise 2/2 Local Noise Laws ... as the country was expanding Consider the times and the importance of having neighbor questions resolved A settler who went out to string boundary fences had at least two major concerns: water and timber If he put his fence in the wrong place, NEIGHBORS AND LEGAL QUESTIONS Introduction/3 taking a few acres of his neighbor s trees, the stage was set for a legal battle These were not just problems of... and are being bothered by noise and disturbance coming from the tenants in your own building If polite attempts to work things out between the two of you have failed, it’s time to involve the landlord or the manager As a first step, talk to your neighbor about all tenants’ rights to quiet enjoyment If the landlord’s leases or rental agreement includes a clause repeating this guarantee, remind the neighbor. .. property ordinance in Oakland, California, mentions weeds and rubbish, and also has a long list of other items not allowed on property The list includes structures (including fences) , windows, driveways, sidewalks and retaining walls that are broken, deteriorated or defaced with graffiti.1 An uncaring neighbor can be forced to repair the unsightly mess or face a fine Weeds, Rubbish and Garbage Most towns . 1941- Neighbor law : fences, trees, boundaries & noise / by Cora Jordan, 4th ed. p. cm. Includes index. ISBN 0-87337-650-1 1. Adjoining landowners United States Popular works. 2. Boundaries (Estates). 4th edition Neighbor Law Fences, Trees, Boundaries & Noise by Attorney Cora Jordan Keeping Up to Date To keep its books up to date, Nolo issues new printings and new editions. serious neighbor disputes trees, fences, boundaries, easements and noise are covered in separate chapters in this book. This chapter outlines a strategy for dealing with almost any other kind of neighbor