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.
“Hello, In New Jersey our next door neighbor’s daughter decided to pull the grass around a small tree located in the middle of our neighbor’s house and mine without asking for my permission, replaced it with pebbles and put a small fence around it. Since it is right in front of our driveway, we end up accidentally running over the fence when we pull in or get out of our driveway. When we or guests park in front of my house, the fence also poses as a tripping hazard. We decided to remove the fence right in front of our house to allow us free access in and out of our driveway, and also to prevent anyone from tripping on the fence. My question is, does my neighbor’s daughter have the right to pull the grass, put pebbles, and install a fence on the small piece of land on the sidewalk right in front of my house with or without my permission? Are we within our rights to remove the fence in front of our driveway? Thanks in advance!!”
The first question is, under your state law, whose tree is it? I don’t know the answer to that, but it could be either yours, theirs, or shared, and obviously their rights and yours would depend in part on who the owner is.
Even if the tree is theirs, though, the land around it (or at least part of that land) is yours, and by them coming on to your land, making changes, etc., they are trespassing and possibly creating a nuisance.These would be the legal grounds for stopping those actions. Some states allow land owners to use “self help” to abate a nuisance, which in English means that if someone leaves something on your property, you can pick it up and move it without having to go to court first. Even if your state allows this (and I don’t know if yours does), it is a risky thing to do, since the thing left on your property (in this case, the fence) still belongs to its owner, and you don’t have the right to destroy it in the process. If you decide to go this way, you should warn your neighbor in writing (so you have a record) that you’re going to do it first, and have a photographic record of what was there and what you did to help defend against claims that you damaged their fence.
What you should do, if talking to your neighbor directly doesn’t help, is talk to an attorney. Sometimes, a letter from an attorney gets people’s attention where direct discussion doesn’t, and if that fails, then you’re in a position to sue if you need to.
