I have handled several such cases. The law and the facts can get complicated. First, both you and your neighbor have the primary obligation to act reasonably to prevent damage to each other's property. You are allowed to cut the limbs of the tree and the roots to the property line, but only if you can do so reasonably, without endangering the life and structural viability of the tree. For example, if you cut the roots on your side and the tree falls over, you are responsible for all the damage. Judges hate self-help. It is better to sue the neighbor for creating a nuisance and to force him to stop the nuisance, which might involve removing the tree, than to do it yourself, even if the result is the same.
This is a great opportunity for neighborhood mediation with a group like SEEDS. You should get an estimate from a contractor for what it is going to cost to repair your concrete and garage, and how often that is going to need to be repeated if the tree is not removed.
If you appreciate this free advice, please remember to refer me to any friends or acquaintances who need a lawyer. Referrals are still our best source of new business.
Do you have a revocable living trust to protect your heirs against probate? Probate takes forever, is expensive, and is annoying. Do your family a favor. Set up a trust, and put all your property, especially any real property, into the trust. Since it is revocable, you can change it, add to it, take property out of it, or even cancel it completely, at any time. We set up such trusts, provide a pour-over will as a back-up for any property that does not make it into the trust, provide you with blank durable powers of attorney for health care and financial decisions, in case you become incapable of making such decisions while still alive, and convey one piece of real property to the trust, usually the family home, for $1500.00. If you would like to hire me to do this, let me know, and I'll send you a list of the information I need.
Dana Sack
Answered on Oct 30th, 2017 at 10:53 AM