Real Cases in Real Estate By Andrea Lee Negroni, Esq. – July 11, 2013 Update

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – July 11, 2013 Update

Real Cases in Real Estate is a weekly update on real estate law, with legal principles illustrated and explained by lawsuits from around the country. The topics are wide-ranging for appeal to a broad spectrum of readers including lawyers, homeowners, investors and the general public. Andrea Lee Negroni, a Washington DC attorney and legal writer with 25 years of experience in financial services and mortgage law, contributes the case summaries.

Followers of Real Cases in Real Estate will learn and be entertained by lawsuits involving nuisance, trespass, zoning violations, deed restrictions, title insurance, public utilities, mechanics liens, construction defects, adverse possession, foreclosure and eviction, divorce and marital property rights, tenants' rights, and more. Real Cases in Real Estate uncovers the unpredictable, amusing, and sometimes outrageous disputes between next-door neighbors, contractors and homeowners, condo boards and residents, real estate brokers and homebuyers, and zoning administrators and developers.

Each fully cited case summary highlights the essential law of the case and explains the principal legal theories and concepts relevant to the outcome. Plain language treatment makes Real Cases in Real Estate accessible to lawyers and laymen alike.

Whether you follow real estate law professionally or as a hobby, you'll find something new and useful every week in Real Cases in Real Estate.

Updates for the Week of July 11th, 2013

Vermont Court Establishes Rule on Tree-Cutting. They don’t call it the Green Mountain State for nothing. Vermonters love trees.  Alvarez and Katz, neighbors in South Burlington, Vermont, fought about whether Katz could build an addition to his home and in the process, cut Alvarez’s 65-year old, 65-foot tall tree. The tree was on Alvarez’s side of the lot line. The tree was in the airspace needed for the addition to Katz’s house. The new foundation would require cutting of the root system of Alvarez’s tree.

The language of this decision is refreshingly simple: “The common law of trees in Vermont is uncomplicated and unsurprising. Trees which grow on a property owner’s land belong to the property owner. The law recognizes that trees routinely spread across property lines, both in the air and underground. This is not considered a “trespass” since the long-term use of air and ground through trespass would give rise to adverse possession. Clearly the growth of a tree across property lines does not accomplish that. Tree owners, therefore are permitted to allow their trees to grow into their neighbors’ lots.”

This general principle is limited, however, to allow the adjoining property owner to cut the branches and roots on his side of the property line. This is exactly what Katz wanted to do, but because of the extent of the tree overhang, Katz’s cutting would have removed half the limbs of the tree and half its roots. The tree would not likely have survived this radical surgery. Prior to this case, Vermont had no common law on whether an adjoining owner could cut so much of his neighbor’s tree that the tree would die. The court therefore looked to the rules of other states for guidance.

The court found helpful decisions from New York, New Jersey and California courts, which weighed the competing rights of a tree owner and the property owner next door. These cases established a rule that the right of an adjoining landowner to cut his neighbor’s tree is limited to cutting that does not harm the health of the tree. The court observed, “a damaged tree is dangerous.” Even though this limitation would likely prevent Katz from building his addition, a serious consequence, the Vermont court said the rule recognizes both “the right of the defendants to trim overhanging limbs and the right of the plaintiffs to protect the health of the tree and the safety of their property.”

Katz attempted to persuade the court that damages for tree loss were compensable with money but the court wasn’t buying it. “Trees take a long time to establish themselves. They provide shade and protection which cannot be replaced once they are moved. … The tree has value to its owner which cannot be measured by the replacement cost of a nursery specimen or its value as cordwood.” Alvarez got his injunction against the tree cutting.

Alvarez v. Katz and Berger, Superior Court of Vermont, 2013 Vt. Super. LEXIS 18 (June 3, 2013). [enhanced version available to subscribers]

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