Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“My neighbor has planted a tree next to my pool wall. The tree will have a minimum width of 25 feet. It will shed leaves and nuts into my pool, and will also shut off my sunlight. This tree is planted on the north side of the neighbors home and will not be used for shade. I live in a gated community and the association claims it is a neighbor to neighbor issue even though it will be a nuisance and can cause damage to my pool motor. Can i take the neighbor to court to move the tree?”It’s certainly possible to bring legal action to abate a nuisance, and under the right circumstances a tree can be a nuisance. Unfortunately, whether your situation makes a good case is usually a hard question to answer, because in nuisance cases the courts balance the burdens on either party-and everyone always thinks their burden is greater, but the judge may not agree.
Question: There are three primary places to look for some guidance as to your rights in this sort of situation, and your Homeowners’ Association was a good place to start. At the risk of seeming paranoid, I’d suggest that you read the deed restrictions (known as CC&Rs in many areas) yourself, and not rely on the Association’s interpretation. They may give you some rights against your neighbor, even if they aren’t the type that the Association will enforce.The other places to look are local (city or county) laws, usually zoning, and of course state law in your state. You may wish to consult with an attorney to help you locate and interpret all of these.
Answer:
Once you have an idea of what your legal rights are, you also need to consider the cost of bringing a lawsuit-not only in money and time, but also in the poor relations you will have with your neighbor. In the long run, you might be better off offering to help your neighbor with the cost of moving the tree.
