Friday, September 6, 2013

Your Neighbor's Tree and Your Rights

Northern Virginia is a hotbed for disputes between neighbors relating to trees and vegetation.  This is an unfortunate result of suburban development into forested areas, as well as the proliferation of planned subdivisions containing trees that have reached (or are nearing) adult maturity.  Our firm regularly receives calls from home owners asking the same question: What are my rights with respect to my neighbor’s trees?

In 2007, the Supreme Court of Virginia entered a landmark ruling on tree disputes in the case of Fancher v. Fagella.  In that case, a homeowner in a townhouse community brought suit against his neighbor in the Fairfax County Circuit Court alleging that the invasive root system of a tree on his neighbor’s property was damaging his property.  The homeowner asked the Circuit Court to order the neighbor to remove the tree and to pay for the costs of restoring his property.  Based on previous tree cases decided in Virginia, the Circuit Court refused to order the removal of the tree.  However, the Virginia Supreme Court reversed this decision and established a new legal standard by which tree cases are to be decided by Circuit Courts in Virginia. 

The Supreme Court ruled that encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If such harm or threat of harm exists, the owner of the tree or plant may be required to remove or cut back the encroaching branches or roots of a tree and compensate the adjoining property owner for damages.  The Supreme Court also reaffirmed the existing “self-help” law in Virginia which permits an adjoining landowner, at his/her own expense, to cut away any encroaching vegetation to the property line, whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm.

It is important to note that a Court will only order a property owner to remove or cut back encroaching branches or roots after “weighing the equities” of the case.  The Court will consider the relative benefit an injunction would confer upon the aggrieved neighbor in contrast to the injury it would impose on the property owner.  If the aggrieved party can be made whole by exercising self-help to the property line and receiving an award of damages from the tree owner, the Court may not order removal of the tree.

If you have a tree dispute with a neighbor, the attorneys at Gross & Romanick, P.C. can assess your case and provide you with a thorough cost-benefit analysis of your various options, including filing a legal action. 

Should Your Business Buy or Lease Its Location?

(Note:  This is a “guest article” co-authored by Verity Commercial, LLC and Gross & Romanick)

A common question asked by business owners to their attorneys and real estate advisors is whether it is wiser to buy or lease property for their business.  Much to their dismay, we usually answer with the infamous “it depends”, as the answer to the question hinges on a multitude of factors, both qualitative and quantitative, that are unique to each client. 
Some of the qualitative factors to be considered by the business owner include the following:

·               Long term business goals
·               Potential for business growth and expansion
·               Need for capital financing
·               Anticipated return on already invested capital
·               Previous costs of occupancy
·               Resources applied to occupancy
·               Risk aversion

Some of the quantitative factors to be considered by the business owner include the following:

·               Initial cash outlay
·               Fixed and variable costs
·               Anticipated appreciation
·               Tax treatment (consult accountant)

There are definite advantages and disadvantages to owning property versus leasing property.  Some of the advantages of owning the real estate in which the business operates include the following:

·               You are your own landlord
·               Greater business stability
·               Control over variable costs of operation (maintenance, repairs, insurance, utilities, etc.)
·               Potential for long term gain with appreciation
·               Ability to lease space to third parties
·               No annual increase in occupancy cost
·               Deduction of depreciation (consult accountant)

At the same time, there are definite advantages to leasing property, including the following:

·               Smaller up-front cash outlay
·               Limited responsibility for property management
·               Greater flexibility to relocate/expand/contract
·               Deduction of rent as business expense (consult accountant)
·               No risk of depreciation
·               Can negotiate an option to purchase

It is important that you consult with your attorney and real estate advisor before making a decision with respect to buying versus leasing.    

The law firm of Gross & Romanick has extensive experience in real estate leasing and purchasing transactions. 

Verity Commercial is an experienced leasing and sales brokerage firm, which can be reached at 703-435-4007 or ktraenkle@veritycommercial.com