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Case Law Update: Killing boundary tree subjects neighbor to lawsuit for damages

Posted Wednesday, June 28, 2017 by Christopher L. Thayer

Dead TreeIn a recent case before Division II of the Washington Court of Appeals, Herring v. Pelayo (No. 48786-1-II), the court revisited the “boundary tree” doctrine established by the Happy Bunch, LLC v. Grandview case, 142 Wn. App. 81 (2007), and harmonize it with the general proposition that a land owner has the right to trim branches or roots from a tree on a neighbor’s property – to the extent the branches or roots extend onto their property.

It has been long established in Washington that a landowner has the legal right to “engage in self-help and trim the branches and roots of a neighbor’s tree that encroach on his or her property.” Mustoe v. Ma, 193 Wn. App. 161 (2016). The court in Mustoe rejected arguments by appellant that when trimming encroaching branches or roots the landowner has a duty of care to avoid damaging the neighbor’s tree.

The Court in Happy Bunch dealt with a tree directly on the boundary line between two properties and found:

[A] tree, standing directly on the line between adjoining owners, so that the line passes through it, is the common property of both parties, whether marked or not; and trespass will lie if one cuts and destroys it without the consent of the other.

Herring v. Pelayo arises out of a classic neighbor dispute. The Herrings and Pelayos are neighbors who share a common property line. On or about December 2, 2011, the Herrings hired a tree trimmer to remove some branches from a tree that was located on the common property line. The Herrings did not discuss their plan to remove branches from the tree with the Pelayos. The Pelayos believed that the manner in which the tree branches were removed caused the tree to become unbalanced and that the unbalanced tree constituted a danger to their home and their safety. On December 31, 2011, the Pelayos hired a tree trimmer to remove all the remaining branches from the boundary tree without first discussing their plan with the Herrings. The removal of all the remaining branches caused the boundary tree to die.

The Herrings sued the Pelayo under Washington’s “timber trespass” statute (RCW 64.12.030) and for general trespass under RCW 4.24.630. The matter proceeded to trial. Pelayo testified: (1) he knew the tree at issue was on the Pelayos’ and Herrings’ common property line, (2) he directed his tree trimmer to remove all of the remaining branches from the tree, (3) he did not discuss his plan to remove the remaining branches with the Herrings, (4) the tree was alive prior to the removal of the remaining branches, and (5) he believed that removing the remaining branches would kill the tree.

Moreover, as tenants in common, the Pelayos and Herrings were each entitled to use, maintain, and possess the boundary tree, but not in a manner that “interfere[d] with the coequal rights of the other cotenants.” Butler v. Craft Engineering. Therefore, unlike a landowner engaging in self-help to trim branches overhanging his or her property from a tree situated entirely on the property of another, a cotenant to a boundary tree has a duty not to destroy the common property and thereby interfere with the rights of the other cotenants. Thus, the Court of Appeals held: “where a tree stands on a common property line, the common owners of the tree may lawfully trim vegetation overhanding their property, but not in a manner that the common owner knows will kill the tree.”

With this holding, the Court of Appeals has created an interesting situation. If you have a tree on your neighbor’s property and the branches and roots extend onto your property, you have the right to trim those branches and roots on your side of the property line – even if it causes damage or kills the tree. However, if it is a “boundary tree” straddling the boundary line, the property owners co-own the tree. If in this scenario one party cuts branches and/or roots (that are wholly on their side of the property line), which causes the tree to die – you would be liable to your neighbor under these circumstances for damages.

It is unclear whether the Court of Appeals decision will stand, or whether further appeal (to the Washington Supreme Court) may be had. Certainly, the court’s decision creates some confusion and potentially inequitable results.

We recommend for all property owners to work with their neighbors before any significant cutting of branches or roots from an adjoining tree. Do your best to work out an understanding and maintain good “neighborly” relations. If you have questions or problems with a tree encroaching onto your property, please feel free to contact Chris Thayer to discuss your situation. Mr. Thayer can be reached at (206) 804-1494 or CThayer@PivotalLawGroup.com.

Photo credit: Dead Tree, used under the Creative Commons license.

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Seattle ordinance requires landlords to give out voter registration info

Posted Wednesday, June 21, 2017 by Christopher L. Thayer

landlordsOn Monday, the Seattle City Council voted unanimously to require that Seattle landlords give tenants voter registration information as part of an already required information packet on housing laws.

Studies have shown that people on the move vote at lower rates, the ordinance says. While 41 percent of renters in their homes for more than five years reported voting in 2014, only 21 percent who had lived in their homes for less than one year reported voting, the ordinance says, citing U.S. Census Bureau data.

The ordinance will go into effect 30 days after Mayor Ed Murray signs it.

Click here for a link to the full article or see the link below:


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REAL ID Compliance: What Washingtonians need to know

Posted Wednesday, June 14, 2017 by Pivotal Law Group

InsleeThe REAL ID Act, passed by Congress in 2005, set standards for the issuance of sources of identification, such as driver’s licenses. Here’s the latest update residents of Washington need to know.

  • Washington’s standard driver’s license/identification card does not meet the standards required under the REAL ID Act. Washington also offers “enhanced” IDs that are compliant with this Federal law. Unlike standard IDs, enhanced IDs require proof of citizenship and contain other security features.

  • Last month, Governor Jay Inslee signs a bill seeking to bring Washington state into compliance with the REAL ID Act. Starting July 2018, the standard IDs will be marked to indicate they are not REAL ID compliant.

  • Washington residents will still be able to choose which ID they want. Those with standard IDs will eventually need to provide REAL ID complaint identification, such as a passport, for domestic air travel and other federal purposes.

  • Washington state officials have asked for an extension from enforcement of federal requirements for state driver’s licenses and ID cards through October 2020, but so far the feds have only granted an extension through July 10.

  • Washington lawmakers expect their request for an extension to October 2020 will be granted. If, however, the extension is not granted, Washington residents could be required to show REAL ID compliant identification for federal purposes as early as January 2018.

Click here for a link to the full article or see the link below:


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Legislative Update: Tougher distracted driving law goes into effect July of this year

Posted Wednesday, June 7, 2017 by Pivotal Law Group

DrivingOn July 23, 2017, Washington’s new distracted-driving law goes into effect. The Legislature had agreed to postpone its implementation to 2019, but Governor Jay Inslee vetoed that compromise provision. As a result, drivers have just a few weeks to familiarize themselves with these new rules.

Currently, drivers are prohibited from “holding a wireless communications device to his or her ear,” as well as sending, reading, or writing a text message, while driving.

The new law is much broader, and prohibits nearly all uses of handheld electronic devices while driving. Note: driving includes not only when the vehicle is moving but also when temporarily stopped, such as at a stop sign, traffic light, or in traffic. It does not include times when the driver has pulled off the roadway where the vehicle “can safely remain stationary.”

The new distracted-driving law defines “personal electronic device” as “any portable electronic device that is capable of wireless communication or electronic data retrieval,” unless the device is “manufactured primarily for hands-free use in a motor vehicle.” It includes devices such as cell phones, tablets, laptops, two-way messaging devices, and electronic games, but this list is not exclusive.

The prohibited “uses” include: - Holding a personal electronic device in either hand or both hands; - Using your hand or finger to compose, send, read, view, access, browse, transmit, save, or retrieve email, text messages, instant messages, photographs, or other electronic data; and - Watching videos.

The law does allow for “the minimal use of a finger to activate, deactivate, or initiate a function of the device.” It also does not prohibit using such a device if it is to contact emergency services.

Any person who violates this law is guilty of a traffic infraction subject to a $136 fine. This is a primary offense, meaning the police can pull someone over just for committing this infraction. In the event of a second infraction, the fine increases to $235. Distracted-driving citations will also be reported on a motorist’s driving record, which can affect a driver’s insurance rates.

Additionally, the new law makes it a traffic infraction to “drive dangerously distracted,” which is defined as “engag[ing] in any activity not related to the actual operation of a motor vehicle in a manner that interferes with the safe operation of such motor vehicle on any highway.” This could include activities such as grooming or eating while driving. Driving dangerously distracted is a secondary offense, meaning it is not enforced unless the driver is detained for a suspected violation of a separate infraction.

Violation of this secondary infraction is subject to a $30 fine, which will go into a distracted driving prevention account to be used to support programs “dedicated to reducing distracted driving and improving driver education on distracted driving.”

This law makes great strides towards modernizing Washington law to address how changes in technology have affected people’s behavior on the road.

Photo credit: April10 033, used under the Creative Commons license.

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Swedish neurosurgeons double-booked surgeries

Posted Wednesday, May 31, 2017 by Pivotal Law Group

XRayWhen having surgery, patients have many questions for their doctors. One question most patients probably don’t ask is: Will you be in the operating room during the entire procedure? Now, news from Swedish health suggests patients should add this question to their ever-growing list.

In recent years, some of Swedish’s top brain and spine surgeons routinely ran multiple operating rooms at the same time while keeping patients in the dark about the practice, according to internal surgery data obtained by The Seattle Times as well as interviews with patients and medical staffers.

Four surgeons at the Swedish Neuroscience Institute — [Rod] Oskouian, David Newell, Johnny Delashaw and Jens Chapman — ran multiple operating rooms during more than half their cases over the past three years, according to the data. Oskouian did it 70 percent of the time. To manage two rooms, surgeons generally leave less-experienced doctors receiving specialized training to handle parts of the surgery.

Between 2014 and 2016, there were more than 200 instances when surgeons began two cases at the same time or within five minutes of each other. When doctors ran multiple operating rooms, they typically overlapped their cases for more than an hour, according to the data. More than 700 of the surgeries were entirely eclipsed by other cases the attending surgeon was handling.

Most patients interviewed by the Seattle Times said they had never heard or considered this double-booking might occur, and would not have consented to surgery had they known.

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