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REAL PROPERTY, Trespass, Nuisance: view obstruction and violation of easement

RESULT: Respondents ordered to remove 2 Monterey Pines, 16 Redwoods, prune back 10 additional Redwoods, and to prune back 1 Chinese Elm and 4 Purple Leaf Plums. The costs of removal were ordered to be borne by Respondents. A defined view corridor was established in accordance with the Claimants’ arborist’s recommendations, and Claimants were given rights to maintain that view corridor on an ongoing basis using the contractor of their choice. Claimants were also awarded 50% of their attorney’s fees. The arbitrator was Lawrence A. Baskin.

CASE: Jerry Romain, Barbara Bennett, Joyce and Saburo Kami v. David Eklund and Mary Eklund, et al.

AWARD DATE: October 11, 2009

ATTORNEYS: Claimants – Barri Kaplan Bonapart, Esq. (Bonapart & Associates, Sausalito)
Respondents - Paul Smith, Esq. (Keegin Harrison Schoppert & Karner LLP, San Rafael)

EXPERTS: Claimants- James MacNair, consulting arborist, MacNair & Associates, Glen EllenRespondents- James Lascot, consulting arborist, ArborLogic, San Francisco

FACTS & CONTENTIONS: Claimants (Romain, Bennett and the Kamis) and Respondents (the Eklunds) are next door neighbors in Tiburon, CA.  The Kamis’ property benefitted from a view easement over the Eklunds’ property, and all properties were subject to the requirements of the Tiburon View Ordinance. A view dispute arose between Kamis, the Romain/Bennetts, and the Eklunds. Over several years, the Claimants entered into good faith negotiations with Respondents and while these negotiations resulted in sporadic pruning, the results did not restore the views. An arbitration arose out of failed negotiations and steadfast refusal by the Respondents to live up to their agreements.

Claimants contended that the Eklunds’ trees violated the Town of Tiburon View Ordinance and the existing view easement. They sought abatement of the nuisance posed by the trees, specifically the removal and/or trimming and ongoing maintenance of the trees in accordance with their arborist’s report, as well as costs of view restoration, costs of arbitration, and general damages for nuisance.

ADDITIONAL INFORMATION:The conditions of the arbitrator’s award were ordered to run with the land and be recorded against Respondents’ property, to burden successors in interest. Post-arbitration motions were made regarding the adequacy of the work performed and its conformance with the award.

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