Boudary issues

[John Paul Sanborn]

We've discussed the occurrence of accidental trespass by concentrators, and a few occurrences where the client gave incorrect information as to boundary location.

Here are answers to my question from my professional insurance carriers attorney.

The emails read from bottom up in the first quote.

It amounts to what we already knew, no matter what you do, anyone can sue you if you go into their yard. CYA let and right, up and down.

From: Temple, Brad [mm]
Sent: Tuesday, February 24, 2009 9:41 PM
To: Eric Petersen
Subject: RE: Trees on boundary line

Eric:



The amount or extent of “due diligence” required is a difficult question to answer as it is heavily dependent upon the facts of each individual situation. In general, if you have any doubt at all about a boundary line issue its best to consult with both property owners. In a perfect world, something in writing signed by both property owners would be best.



If you can’t get both property owners to agree, a survey is about the only sure fire way to ensure that a tree is on a certain property.

I hope this helps.

Brad
Attorney

From: Eric Petersen [
Sent: Monday, February 23, 2009 12:41 PM
To Brad
,Subject: FW: Trees on boundary line

Brad,

I received this email yesterday from one of my current West Bend Mutual clients. If you could look it over and help me respond to him that would be greatly appreciated. I obviously, know what steps he can take to prevent a lawsuit, however, am unsure how to answer his "due diligence" question.

Thanks for your help. Talk to you later.

Eric

From: John Sanborn
Sent: Sunday, February 22, 2009 10:41 AM
To: Eric Petersen
Subject: Fw: Trees on boundary line

Hi Eric, I think i may have mentioned this scenario before. Could you ask the people at WMB how they me look at it, and what "due diligence" they may expect from policy holder.

First would be the Nichols scenario where the client told him to to restoration clearing the amounted to a trespass incident. His consultant saw improvement the plaintiff saw a loss of value from screening loss for which their consultant put a very high price. ( I think his consultant may not have done a good job) Dave tried to show good will by offering to plant new stock....

He took the clients word, who had taped off some of the plants to be removed, but she "threw him under the bus" after the fact. He took no pictures and never contacted the neighbor prior to starting work.

Another scenario would be the typical tree in joint ownership that is not obvious without an actual survey.

Last is from my past, the long term client called with heavy snow damage to a Russian olive that the neighbor was just hacking the top out of. She wanted it down and replaced. All my contact was by phone and never walked the job with her. It was a small one I could practically drive up too. Turned out with the irregular lotline it was the neighbors tree and she did not go out to take a good look. Neighbor was livid, we got out of it with a fee stump grind and no charge to anyone for the removal.

Brad, thanks for the email. That is what I had already told him and what I figured you would say. He followed with another question about having a clause in his contract that makes his client responsible for any boundary line issues. I'm not sure that this would hold up as he is still the one doing the work on the tree. Could this be a possible solution to this issue?



Thanks for your help Brad!

Eric Petersen
---
Eric
That would help but it would not stop the opposing property owner from making a claim or suing the insured. Further, it’s not guaranteed that a Court would uphold such a clause. Finally, if the tree was on the opposing property owner’s land, then the insured would technically have trespassed making the insured liable to the opposing property owner. The insured would then have to file a separate lawsuit against his customer to enforce the contract.

 

[TreeTopKid]

We've discussed the occurrence of accidental trespass by .....

I don't even like working for people that don't get on or communicate with their neighbors. It can make for a very precarious work situation, especially when both are 'emotionally' involved with the tree, or it involves overhanging branches. If a client is not prepared to consult with his neighbor about their trees or access to their property I'm not prepared to carry out the work.

 

[woodchux]

We had a lady actually call the cops out one time. We took down a couple of loblolies between two houses, no fences, just open yards. The trees had to come down right on the property line, no other way around it without a crane. Anyway the lady called the cops because we entered her yard. The cops showed up and told her that they could not do anything, that it was a civil matter.