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Remedy to tree problem is rooted in state law

Dear Benny: My neighbor has a Bradford pear tree that is probably about 15 years old.

The other night during the heavy wind a branch of the tree broke off, exposing the trunk. I advised my neighbor to take down the tree because it will continue to drop branches and die.

He was not going to do that. Now the heavier branches are leaning toward my property. I would like the name of the law that addresses encroaching tree branches so I can advise him that the tree will be his responsibility if it falls on my property. –Lisa

Dear Lisa: Unfortunately, the answer depends on where you live.

Although “tree law” is evolving throughout this country, there are two different approaches that states have adopted.

First, there is the Massachusetts rule. This states that while you have the absolute right to cut roots or trim branches that overhang or encroach on your property, the tree owner has no liability should the tree cause damage to a neighbor’s property.

Second, there is the Hawaii rule. Back in 1981, the high court in that state held that “when trees cause actual harm or pose an imminent danger of actual harm to adjoining property,” the neighbor may require the tree owner to pay for the damage and to cut back the endangering branches or roots. And if this is not done within a reasonable period of time, the neighbor “may cause the cutback to be done at the tree owner’s expense.”

However, to my knowledge, in every state a neighbor has the absolute right to trim overhanging branches and cut roots that encroach on their property. The neighbor cannot, however, trespass onto the next-door property nor demand reimbursement for such actions.

I had a similar case several years ago. The tree on my client’s neighbor’s land was dropping large walnuts on my client’s backyard, and the tree’s roots were damaging my client’s garage. I filed a lawsuit against the neighbor, claiming that the tree was a private nuisance. We settled in court, because the judge was sympathetic to my position.

Your attorney should tell you which rule applies in your state. But at the very least, the attorney should send a strong letter to the neighbor (by certified mail, return receipt requested and by regular mail) advising him of the problem and putting him on notice should there be damage or injury to your person or property.

One other suggestion: Arrange to have a certified arborist inspect the tree (he cannot enter the neighbor’s property) and if it is determined that the tree is not healthy, a copy of that report should be included at an attachment to the attorney’s letter.

Dear Benny: In your columns, you always use the words “deed of trust” when you are referring to a mortgage. Is there a difference between these two? –Harry

Dear Harry: Yes and no.

Oversimplified, both are documents that secure a lender in case their borrower goes into default. However, to my knowledge, some jurisdictions, such as Maryland and the District of Columbia, use deeds of trusts and not mortgages.

The basic difference is that when there is a mortgage and the borrower goes into default, the lender must go to court to foreclose on the property. This is known as a judicial foreclosure.

With a deed of trust, the borrower — immediately after getting the deed to the property — deeds the property in trust to a trustee or trustees selected by the lender. The deed of trust contains a “power of sale,” giving the trustee the right to foreclose without having to go to court. This is known as a nonjudicial foreclosure.

Space in this column is not large enough for me to go into an explanation of the mortgage mess that we have in this country. Suffice it to say, there is a company called Mers (Mortgage Electronic Registration Systems) that is a private mortgage registry, allegedly claiming title to hundreds of thousands of mortgages throughout the country. There has been a lot of court cases over whether Mers is the true owner of those mortgages.

Some courts have upheld Mers, others have not. Ultimately, the U.S. Supreme Court will tackle this issue. Stay tuned.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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