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What to do about overhanging branches

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POSTED August 22, 2013 10:09 p.m.

Q: My neighbor has several trees on his property at the property line. The branches come over my lawn, roof and driveway. I have requested many times that he trim the branches but to no avail. When they asked me to cut a tree that they feared would fall on their house I complied, no question asked.

 My question is:  can I have the branches trimmed. Do I need his permission? Can he take action against me if I trimmed them. Usha.

A:  Dear Usha.  Tree law varies on a state-by-state basis. In general, the common law adopted in all states is that you have the absolute right to trim any overhanging branches and cut any roots that are growing on your property.

There is one caveat, however. If you trim the branches or cut the roots and the tree may die as a result, this could be a problem. For example, in the District of Columbia, our legislative body (City Council) enacted a law that prohibits anyone from injuring a live tree, and subjects that person to potential criminal sanctions.

So here’s my suggestion: consult with a local arborist in your area. He/she should inspect the trees – being careful not to trespass on your neighbor’s property – and give you a written opinion as to the impact  your actions may have on the tree(s).  And the arborist should know the local tree law. If the arborist gives you the go-ahead, I would advise your neighbor of your intention and then go ahead and trim and cut away.

On the other hand, if the arborist tells you could injure or kill the tree, then you may have to resort to legal action. I have successfully sued a client’s neighbor for private nuisance, because the tree roots were damaging my client’s garage and the walnuts were falling all over the back yard. My client was concerned that any work on the tree would cause it to die and fall, and that could harm or kill someone.

Talk with your arborist and an attorney about your options.

Q: I purchased a townhouse in 2001. Lived there until 2011. Moved to another state in 2011 and have rented it out since. What do you assess my tax liability to be for any amount over the basis should I sell it? Oscar.   

A: Oscar.  I don’t have enough information about your situation so my response must be general. If you have lived and owned real estate for two out of the five years before it is sold, you can exclude up-to-$500,000 of profit if you file a joint tax return (or up-to-$250,000 if you file a single tax return.)   

So, do the numbers. You lived in the property as your principal residence until 2011. Your five years would have to start in 2009 in order to give you the two out of five. If you started to rent in October of 2011, you would have to sell by October of 2014 in order to qualify for this capital gains tax exclusion.

Alternatively, you could consider doing a 1031 Starker exchange, and instead of treating your home as a principal residence,  call it an investment. However, this is a complex legal procedure, and you must consult with a tax attorney or financial professional.

Q: I read with interest your recent  article regarding the pros and cons of purchasing title insurance. We have always purchased it; but I no longer feel that it is worth the paper it is printed on.

In 2007, we purchased a commercial piece of property in which to house our family business, a gift and home accessories store. It appeared that the tenants next door were trespassing so while we were at the title company  signing the papers, I asked verbally if we were covered.  Oh yes of course, silly goose (verbal)

After much unpleasantness with the adjacent landlord, he put a temporary restraining order on us when we were in process of erecting a fence.  He then sued us and lost. He then appealed and lost.

Our attorneys approached the Title insurance company  to see if they would defend us or would underwrite our defense, but they declined saying they had no responsibility in our case. The case had dragged on for months - our legal fees were $95,000. I surmise that had we been underwritten the plaintiff would have given up but he assumed  (correctly) that we did not have the resources for a prolonged legal battle. This experience was crushing for us and our new business.

So you can see why I would think long and hard about title insurance. Margot.

A: Dear Margot.  Thank you for writing. I deleted the name of your  Title Insurance Company since I did not have an opportunity to ask them for a comment.

Title insurance is different from other insurance policies. Your auto or home insurance policy protects you from events that may occur in the future – a car accident or a tree falling on your house. Title insurance, on the other hand, protects you for matters that may have occurred in the past – a wife or husband did not sign a deed years ago, or an unreleased mortgage.

Furthermore, the title insurance policy that you get when you buy real estate spells out what is and what is not covered. Although I do not know all of the facts involved in your case, I suspect there may have been a specific exclusion contained in your policy.

In general, while I am not a fan of title insurance, I have represented several clients who successfully relied on their policies and obtained legal coverage or monetary relief

More importantly, when you buy real estate and get a mortgage (deed of trust),  your lender will insist on lender’s title insurance. The additional cost to get an owner’s policy is usually rather small, so why not get the full coverage.

However, if you refinance, do not pay for owner’s title insurance; if you had such a policy when you first bought the property, that policy remains in full force and effect.

Q: Active Adult 55+ Condominiums are a growing choice of residence in Pennsylvania.  Our community is approximately 11 years old; and, for the past 5 years our Executive Boards have consisted of people who, in my opinion,  do not abide by their duties as outlined in our Declaration.   

Recently a unit (attached and single homes) was sold to people who are under the age of 55 and who have moved into the unit. Our Declaration specifically states that residents (not owners) must be 55+.

The Board has not been forthcoming in answering questions concerning this purchase.

What recourse do we have as unit owners other than to vote the Board out?

 Our Declaration also states that, if the Board is negligent (I think this fits the category), they can be sued independent of our Association’s  legal backing. Is this recommended if they refuse to evict the under 55 owners?

Thank you so much for your article and for reading this note. Condo communities need more reference material in newspapers.  Carol.

A: Dear Carol.  I include community associations in my columns just for the reason you suggest: there is a strong need for more consumer information, especially as these associations are growing in number on a yearly basis

As for your association, have you discussed your concerns first with the Board and then with the association attorney.  I don’t know if Pennsylvania has enacted any legislation dealing with this issue, but do know that the Fair Housing Act does not cover “housing for older persons”.  According to the Department of Housing and Urban Development (HUD), “housing for older persons is exempt from the prohibition against familial status discrimination if” (1) HUD determines that it is specifically designed for and occupied by elderly persons under some form of government program; (2) it is occupied solely by persons who are 62 or older, or (3) it houses at least one person who is 55 or older in at least 80 percent of the occupied units, and “adheres to a policy that demonstrates an intent to house persons who are 55 or older.”

I repeat this because number (3) above may allow those under 55 to reside there.  So before you start threatening lawsuits – or recall procedures – make sure that you are on safe grounds on both the facts as well as the law.

Furthermore, if residents were in the complex before September 13, 1988, they have the right to continue living regardless of their age.

You have the right to demand – from either or both the Board or the property manager – the number of units that are currently occupied by over 55 residents.  It is my understanding that HUD has enacted rules requiring verification, and this information cannot be classified and withheld from you.


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