Legal question about severe shrub pruning by neighbour

Discussion in 'Conversations Forum' started by joZ, Jun 2, 2008.

  1. soccerdad

    soccerdad Active Member 10 Years

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    If you breach the common law, you can be sued by the person you injure but the government has normally no right to take you to Court; if you violate a by-law you can be prosecuted by the municipality but other people normally have no right to take you to Court. So the only effect of a bylaw would be that it would add, to your right to sue the bad guy, your right to ask the City to prosecute him (and the City's right to do so if they accepted your request). What reason would you give city council for why the common law needs to be duplicated/supplemented by a bylaw in that way?

    Admittedly, we do have noise bylaws - and I think that West Vancouver enacted a smell bylaw a while ago that was widely seen as an anti-Curry bylaw and really designed to keep the municipality "pure" but doubtless that was an uncharitable thought - but the common law with respect to things like smells and noises is very difficult to apply, for it is part of the rather vague area of the law called "nuisance", so you can see why the enactment of something more precise could be justified as regards those subjects. But property rights are perfectly precise and well established already.

    But although we do not have anything like California's "initiative" system - more's the pity - by-laws are sometimes proposed by citizen's groups and if they seem desirable may well be enacted, so if you can think of a way to sell it, go ahead.

    If you can get it enacted there on the North Shore, we may follow suit here in the lowlands.
     
  2. Liz

    Liz Well-Known Member 10 Years

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    "here, you can only cut the portions of a bush/tree that impinge on your property...you don't need to get permission either. you can't cut back further than your property line though."

    Ditto down here.

    The photinia [red] will definatley grow back. We have many hedges here and some times people cut them back down to almost stumps and up they come with in 12 months bigger and better than ever.. Probably grow like a weed here because it is warmer. May be the friend could erect some sort of barrier behind the hedge [neighbours side] while it is thinned out so that new growth grows through and that is all they can cut. I am thinking trellis or some sturdy fencing mesh to the height they require. This will also make the hedge look thicker. Regular clipping of the hedge will also make it denser. It may be a blessing in disguise to have this pruned because it won't be long before the new growth appears and hopefully they will keep clipping. I would have been very upset if the top had been lowered but I could live with the side prune. :)

    Liz
     
  3. karmahappytoes

    karmahappytoes Active Member

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    These will grow back fast and I recommend you see legal council, but again the courts may not look to kindly on this. An attorney can better direct you in your rights and not the garden forum. If these are totally on your property you do have rights to send a legal letter to them and this is a property rights issue in which the police and code enforcement are right to tell you it's a legal matter and can only be resolved in the courts. Are you prepared for the legal battle and the cost of $1,000s that this will take?

    The reason I as is due to our property rights issue we are fighting here. A new development went in 9 years ago, I was smart enought to get the hearing examiner to require fencing as I would have 3 new neighbors to my north fence. They also have CC&Rs that require that the fences stay up and maintained. A year and a half ago a section of my northwest neighbor's fence came down, they didn't do anything for 9 months and when they did, they dropped the whole fence and wasn't going to put it back where they took it down. Yep folks, their words were, "We want more yard!"
    A year and a half later and $1,000s of dollars, two attornies and we still haven't gotten them to move the fence off our property, but they have admitted to being wrong. Beings that they are in a new subdivision and according to WA State law I can't complain that they didn't abide by their CC&Rs. It's a big mess and let me tell you it's not pretty!! One could also take them to mediation if you have that option up north? As a community activisits here, they sure didn't pick the right person to do this to!! There will be some changes to how things are done when this is completed and I can totally speak out!

    Someone just passed along to me rottenneighbors.com, but be warned this option can backfire on a person if one isn't careful.

    http://www.rottenneighbor.com/

    Best of luck and seek an attorney!
     
  4. soccerdad

    soccerdad Active Member 10 Years

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    What is a "CC&R"? Not a Canadian concept.

    Many people mix up "mediation" and "arbitration", which are unrelated concepts. They also mix up "settlement" and "judgment" and refer to judges awarding a "settlement", which a Judge cannot do. Using the words properly, this is the situation here: (1) you cannot force anyone to go to arbitration, (2) if you start a lawsuit - and only then - you can force them to go to mediation, in this province (cannot speak for the ROC); (3) but the chances of achieving a settlement then depend entirely on their willing to pay voluntarily.
     
  5. karmahappytoes

    karmahappytoes Active Member

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    soccerdad, CC&Rs area the Declaration of Protective Covenants, Conditions and Restrictions of any subdivision when they build upon lands here in the states.
    Neighbors can request to do mediation before heading to court on a case. You are right it's volunteer bases but again then when you head to court here it's required for small claims so that it doesn't take up the courts time. One can slap leins or guarnish wages in some cases, again it's best to consult an attorney that specializes in the case your are looking at. It is also wise to get an attorney outside of the area in which you live if you can afford to, just a word to the wise.
     
  6. soccerdad

    soccerdad Active Member 10 Years

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    Here you cannot file liens except when expressly authorized by some statute - and the only ones relevant to land of which I am aware anywhere in Canada are "builders' liens" whose name probably tells you all that you need to know. The ability to file liens is seen as one of the most horrible aspects of the US judicial system - the others being jury awards for punitive damages and the election of judges - which all of our Courts and legislatures are adamant must never be allowed to happen here.

    In B.C. - I think this is unique among the provinces - you can, if you file for a "liquidated claim", get something called "prejudgment garnishment" by which those who owe debts to the defendant can be required to pay the amount that they owe him into Court rather than to him. But a claim isn't "liquidated" just because you attach a specific dollar figure to it: for all practical purposes it is only "liquidated" if it is a debt action. A tort action never qualifies.

    I must say that I can't for the life of me imagine why you would want a lawyer - the word "attorney" is not used outside the U.S. - from outside the local area. The normal rule here is that you avoid such lawyers whenever possible since they are always more expensive and there is no advantage to using them - if anything, there are disadvantages in that only the local lawyers will have a "feel" for the local nuances and the predilections of the individual Judges (I remember an Ontario lawyer parachuted in to argue a commercial case here, who lost it, whining to us that "Justice Farley would never have decided the case that way" - well, he sits 2000 miles away in Ontario, and you knew it, was my unspoken reply). I'd be interested in the basis for your recommendation - I suspect that it reflects one of the basic differences between our systems.

    We don't have restrictive covenants of that sort. They are technically possible - as are "building schemes" - but historically the law has not favored them and thus they are seldom used, so I do not even know their permissible scope. Most of the restrictions (in Western Canada, at least) are imposed by the local municipality by way of "zoning" which - I found when I once try to research U.S. law on it - is a Canadian concept that hardly exists in the U.S. It deals with what can be built and what uses property can be put to (high rises only in areas zoned RS-2, retail stores only in zone C-1, manufacturing only in C-2, whatever) but nothing such as you describe would fall into zoning.
     
  7. karmahappytoes

    karmahappytoes Active Member

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    soccerdad, thank you for the Canadian information. Here in WA State we are governed by Growth Management Act when it comes to zoning and the Code which the County as that is where I love are lacking. You need a permit for a greenhouse but no permit for fencing or stormwater, go figure that one out. But if I was in the City of Vancouver I would need a permit for a fence and or removal of a certain number of trees, figure that one out? Hiring an attorney is the last option one should take but ya know since we turned our problem over to them, it's taken a different direction! These folks kept saying if we could prove they were on our property they would move their fence, ya right?? They dropped their fence moved it over 8-10"
    and we have to prove they are on our property?? We have proved it many times and yet they don't care, I can tell you why but I'd sound racial if I said anything.
    Again thank you for the information and best of luck since these will grow back hardier than they once were if pruned, a letter still it the best that this person was trespassing, or post your property no trespassing!
     
  8. Ron B

    Ron B Paragon of Plants 10 Years

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    Fraser photinia is quite vigorous unless doing poorly.
     
  9. joZ

    joZ Active Member

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    Ron B... Seems You and Liz (and others) sound right about this identification. It fits. Thanks. I've done some more research on a Photinia Red Robin (photinia x fraseri)... the plant that was hacked in question. You and Someone said it is a laurel... but I think it is in a class of it's own. I've read up on it but am not clear. Can you explain it to me?
     
  10. joZ

    joZ Active Member

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    Sorry... wrote the above wrong... then pushed the quicky reply button too quick... I meant to say... "someone said it was a laurel" not... You and Someone...
     
  11. karmahappytoes

    karmahappytoes Active Member

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    This can also be cut back to the soil and will grow back quickly if one wants to do so.
     
  12. kaspian

    kaspian Active Member 10 Years

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    I would take some kind of action. Life is short, true -- but that's precisely why this crude hack & slash job that destroyed 15 years of plant growth is so offensive.

    It seems that everywhere I've lived, the neighbors have been the kind of folks who like to cut things down, while I've always been the kind of person who likes to plant things and watch them grow. I really think we need to assert ourselves and raise this issue to a higher level of public consciousness.
     

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