Tree Law: Specializing in the legal issues that surround you
By Patrick White
Does anyone doubt that the best tree care work is done by specialized arborists, rather than diversified landscapers or groundskeepers? It's not so much an issue of talent or ability, but one of training and experience. When you work in a niche area, you can develop your expertise and hone your knowledge to a greater degree than a Jack-of-all-trades might be able to.
That's the premise behind Bonapart & Associates (www.treel aw.com), one of just a handful of law firms in the country specializing in "tree law." The firm's owner, Barri Kaplan Bonapart, worked on complex commercial litigation cases for several large San Francisco law firms before "accidentally" discovering a niche in tree law when a friend of the family approached her for help. "He said, 'I know this isn't what you do, and you have much bigger fish to fry, but my neighbor just cut down some of my trees. Can you help me?'" she recalls.
"Like any legal practitioner taking on their first tree case, I thought 'How hard can this be?' But, I quickly discovered complexities and overlays that I hadn't anticipated, such as how do you perform evaluations on trees? What scientific guidelines and formulas do you use? What are the differentiations between the species and how do they come into play?"
That particular case went to arbitration, and she says, "between the arbitration award and an insurance recovery, we got a six-figure recovery for my client. All for what my partner at the time called 'a bunch of tall weeds.'"
Intrigued by the challenge, Bonapart began to look more into the area of tree law, discovering again that while the subject may seem simple and uncomplicated at first glance, "issues involving trees actually span six state codes here in California. And, in particular, neighbor disputes have a high level of complexity given the emotions involved and the individual dynamics that really makes it a challenge."
Bonapart began to take on more tree law cases and word quickly spread about her specialization in this area of the legal profession. "People heard that I was an effective attorney who understood the issues," she says. "Then, I wrote a couple of articles on the subject that got published, and soon thereafter, I was asked to speak to various arboricultural groups and societies. All of a sudden, I was considered one of the experts in the field." She formed her own firm; today, tree law is her predominant focus. She represents a variety of clients, from tree care companies to businesses to property owners.
Bonapart says there are some laws that apply specifically to trees: "For example, there are statutes governing the wrongful cutting of trees. There are solar/shade access laws. There are laws governing ownership of trees." In other cases, she adds, it becomes necessary to apply areas of common law to disputes involving trees: "For example, when you look at what to do about encroaching limbs and roots, you have to look at how the common law principles (generally state law) of nuisance apply."
Anyone in the tree care business knows how attached property owners can become to their tree. Bonapart says this emotional factor is perhaps the most challenging part of practicing tree law-- particularly in urban and suburban areas, where trees are precious and prized commodities.
Adding to the challenge, she explains, is the fact that "One person's valuable commodity can be another person's nuisance. For example, I recently had some clients in my office who live in one of the most expensive areas in the country. They are having issues with their neighbors over their trees versus their neighbors' views. That's a big area of dispute in areas where houses sell for millions of dollars, and views are a large component of that."
Bonapart believes strongly that, in any transaction, problems can often be avoided "by remembering the golden rule. When I'm approached by clients asking whether they can cut their neighbor's tree back to the property line, I tell them, 'Before I answer that from a legal perspective, have you talked to your neighbor first?' Or I'll point out that, 'If it was your tree, how would you want it to be handled?' I urge them to try to work something else out first, before we talk about what the law says."
However, legal issues involving trees often surface as the means of settling other neighborly conflicts, she explains. "I try to look at what is motivating the dispute. Many times, it has nothing to do with the trees--the trees become a lightning rod for other issues. 'They started a home remodeling project without my permission.' Or, 'They didn't invite me to their daughter's wedding.' Sometimes people aren't very happy in other areas of their life, so the only way they feel like they can have control is to make someone else's life miserable."
How do tree care pros avoid being dragged into these personal neighbor-to-neighbor disputes, or in some other way finding themselves in a vulnerable legal position? Bonapart advises that the first step "is to make sure you're operating under the confines of the law. In California, that means that you need to be properly licensed--not only a contractor's license, but also a specialty license for tree work. A lot of tree guys get into trouble because they don't have the proper licensing, and so if they do something wrong, they're looking at criminal fines and penalties as a result."
Secondly, Bonapart says, it's important for arborists to establish clear, written contracts with their clients. "The contract should clearly spell out the scope of work to be done, and the payment for that work. It should address specific issues such as, 'Are stumps being left or removed?' 'What happens with the underground utilities if you come across something?'"
Finally, she says, it is critical to have a clear understanding of property borders and tree ownership. "Arborists sometimes assume that the property line is where the fence is. That may or may not be the case. If a tree appears to be near a boundary line, even if the client says it's on their property, you should always verify if you can. Ask for survey markings or some proof of where the boundary line is. If it's really, really unclear, it might be good to go next door to talk to the neighbor to make sure there's no conflict about the property line."
Performing work on trees that don't belong to your clients is probably the biggest area of potential problems, Bonapart explains. "For example, a client might say, 'I talked to my neighbor and he said it's OK for you to top this redwood.' If you come in believing him and do it, it may turn out that there was no such understanding--and now you're on the wrong end of the law." One solution is to never perform any work without written authorization for the person on whose land it sits. "Also, you can put provisions in your contract stating that, 'The client certifies that all work to be performed is either on his land or has been authorized. And if this turns out to be otherwise, he agrees to indemnify and hold harmless the arborist.'"
Arborists can also get into trouble in the area of hazard assessment and diagnosis, Bonapart offers from experience. "If a homeowner brings a tree care professional in to look at some trees and make recommendations, and that tree care pro isn't equipped to properly conduct a hazard assessment, and something happens, they can be found to have committed what's tantamount to arboricultural malpractice. If there's extensive property damage or, God forbid, someone is injured or killed, they could be liable for that."
Similarly, pest and disease diagnosis and prevention is an area with inherent liability for arborists. "Here, in California for example, with sudden oak death syndrome, and the diseases that are hitting the Monterey Pines and the eucalyptus--it's important to be sure you're fully educated before you enter this field."A misdiagnosis or improper treatment that results in the death of a prized tree can mean legal liability, Bonapart says, "Particularly if prophylactic measures could have saved the tree, or where the disease then spreads to other trees, resulting in damage that could have been avoided."
Before taking on such projects, it's important to be sure you're qualified for the job, says Bonapart. "If you think you're in over your head, recommend the proper person for a job, such as an arborist with particular expertise in that given area."
With only a few recognized tree law experts in the country, in the event legal problems arise, Bonapart recommends those in the tree care industry "align themselves with a smart, energetic, common sense-based local attorney who can quickly come up to speed with the tree care profession, its practices and the legal issues that are commonly confronted by tree care companies." A real estate attorney might be a good place to start, as there's a fair amount of similarity between the issues encountered in real estate litigation and tree law.
"If an issue comes up that your attorney isn't completely familiar with, it may be a good idea to retain on an hourly basis a true expert in the field as a consultant, either myself or one of the few others who specialize in this area. Just to make sure you're on the right track, or to get back on the right track if you've veered off."This is particularly the case in the event of a serious legal proceeding, such as a wrongful death case. "There are resources out there you can draw from," Bonapart advises.
As is usually the case, it's best to talk to a specialist.
Reprinted with permission from Tree Services. © 2006. Moose River Publishing.