If A Tree Falls In Your Woods … Property Owner Liability.

If A Tree Falls In Your Woods … Property Owner Liability.

When most people look at trees, legal liability is unlikely the first thing that comes to mind. You may enjoy the shade they provide in the summer and their array of fall colors. However, you should also be on the lookout for liability, particularly for those trees close to your property line.

By way of example, imagine a mid-summer storm comes through sending the large, beautiful maple tree you have enjoyed over the years through your neighbor’s roof and into her living room. In this scenario, normal negligence law should apply. In most cases, your neighbor’s homeowner’s insurance company will be responsible for the loss. However, if you knew or should have known of any pre-existing issues to the tree that made it more susceptible to collapse, you may be responsible. In this case, the homeowner’s insurance company could seek to recoup its losses from you through what is called subrogation.

For example, let us assume the tree is dead or dying from insect infestation that has weakened its stability. In this situation you may be liable to repay the insurance company who satisfied the damage claim, particularly if the deterioration of the tree was readily apparent. On the other hand, if the tree was perfectly healthy or its problems were not apparent, it is unlikely that you would be responsible.

In either case, you would want to turn any claim for subrogation over to your insurance company for a defense and coverage.  Whether your insurance company would provide a defense and coverage would depend on the terms of your own policy.  Insurance policies, as one may suspect, have many exclusions and exceptions to coverage.

Another common issue that arises from trees on property lines concerns encroachment. Perhaps you have grown annoyed from the untrimmed tree that has partially crossed onto your property and obstructed your view or yard space. While a brief consultation with your neighbor may lead to a quick resolution, you are permitted to prune the encroaching portions of the tree. Of course, hiring a professional is recommended to guard against causing damage to the rest of the tree. You should also have confidence in the location of your property line to avoid creating your own issues of trespass and property damage should you remove too much of the tree.

Finally, there are statutory prohibitions on cutting certain trees along municipal streets and highways. In such cases, prior consultation with local authorities is recommended. Wis. Stat. § 86.03

Be sure to read through your home insurance policy carefully. If you have concerns about trees on your property we recommend having an aroborist inspect them.

Stevens Point information on trees on property lines. https://stevenspoint.com/1294/Trees-Between-Two-Properties

Large Claims v. Small Claims In Civil Lawsuits

Large Claims v. Small Claims In Civil Lawsuits

Most people have heard of small claims court and large claims court, but how do the differences between these two impact the claim that you may have?  Generally speaking, large claims civil lawsuits involve civil claims where the damages are more than $10,000.00, or more than $5,000.00 for a tort claim (such as personal injury or property damage). If you have a claim such as a breach of contract, business dispute, real estate dispute, employment dispute where the damages sought exceed $10,000.00, then this claim must be filed in large claims court. If someone has a personal injury claim such as tort claim and property damage claim in which damages exceed $5,000.00, those claims also must be filed in large claims court.

The process in large claims cases is more involved and more expensive than in small claims court. The filing fee in a large claims is several hundred dollars just to start the case. The litigants must draft their own legal documents to file and to serve in the case (there are no standard court forms for starting a large claims action). In addition litigants in large claims cases must abide by a scheduling order imposed by the court. A large claims case usually involves a lengthy process where parties are required to name witnesses, engage in written discovery and depositions by certain times; there are deadlines for filing motions; the parties are typically ordered to attend a mediation to see if they can settle their dispute. Then, after all of the above are completed, the parties may finally have their chance for a trial in front of a jury or a judge. Because of this more complex procedure involved in large claims cases, most litigants typically retain attorneys to assist in representing them throughout this process. It can take at least 18 months or more from the start of the lawsuit until a trial finally takes place in large claims court.

By contrast, a small claims case can be handled much more quickly and efficiently, and many people handle these cases by themselves in order to save on costs. Small claims court, however, may be used only for certain types of cases, such as the following:

  • Claim for money damages where the amounts do not exceed $10,000.00
  • Claim for property damage or personal injury (tort actions) if the damages sought are less than $5,000.00
  • Eviction actions, regardless of the amount of rent claimed
  • Repossessions of property (replevins) when it is a:
  • – Non consumer credit action or the value of the property does not exceed $10,000.00
    – Consumer credit transaction (personal property that was the subject of a lease or credit from a dealer) where the financed amount is $25,000.00 or less.

  • Evictions due to foreclosure
  • Return of earnest money for purchase of real property, regardless of the amount
  • Actions on an arbitration award for the purchase of real property, regardless of the amount.

Even if someone files a claim in small claims court where the damages exceed $10,000.00, the small claims court cannot award any more than $10,000.00 maximum, plus costs.

Unlike large claims cases, there are sample forms that individuals can fill out to initiate a small claims action. The filing fee is also much less than a large claims case. One of the most significant distinctions between large and small claims court is how fast the case goes through the court system. The entire case can be filed and tried to the Court in only a few months in some instances in small claims court, as opposed to a couple of years in large claims court.

It is important for individuals to be aware of the differences when selecting which court to file in. Seeking the advice of an attorney can be helpful in making this assessment as well as assisting with navigating the legal process.

What Are The Rules For Emotional Support Animals When Renting?

What Are The Rules For Emotional Support Animals When Renting?

What are the rules for landlords and tenants when it comes to emotional support animals?

For landlords there are important rules to follow to avoid running afoul with Wisconsin and Federal Discrimination laws.

An Emotional Support Animal (ESA) is defined in Wis. Stat. §106.50 as “an animal that provides emotional support, well-being, comfort, or companionship for an individual but that is not trained to perform tasks for the benefit of an individual with a disability.” That means that an ESA does not need any specific training in order to qualify under this statute.

In general ESAs are protected and landlords cannot discriminate against tenants with ESAs and must provide reasonable accommodations for owners of ESAs during the application process, when deciding on fees or in an eviction. The ESA must be necessary to afford the tenant the equal opportunity to use the dwelling and there needs to be a connection between the disability of the tenant and the accommodation the ESA provides.

Landlords can request the tenant seeking the accommodation to submit “reliable documentation” from a licensed health professional that shows (1) the tenant has a disability and (2) the related need for the ESA. If the disability and the need for the ESA are readily apparent or already known by the landlord, the landlord should not require the tenant to provide this documentation because that could be considered harassment.

Landlords can follow-up with the listed licensed health professional to ensure the professional is real and licensed. The health professional will not be able to discuss the tenant’s health with the landlord without violating HIPPA. However, it is likely that if the tenant supplies the landlord with a letter, the health professional will be willing to acknowledge they wrote a letter for the client. This should give the landlord comfort in knowing that the tenant is likely not lying.

If the tenant can provide the necessary paperwork, landlords cannot refuse housing, impose fines, evict or harass the tenant as a result of the ESA and must provide reasonable accommodations. The most common accommodations are (1) allowing the tenant to live with an ESA where the landlord normally has a no-pets policy or (2) waiving any pet deposit or other pet related fee.

From the legal perspective, ESAs are not “pets” and are closer to medical devices that the tenant needs in order to have an equal opportunity to enjoy the housing. This is an important distinction and can help landlords justify letting one tenant have an ESA but not allowing another tenant to have a pet.

Even though the tenant cannot be forced to pay a deposit or fee for having the ESA in the dwelling, the tenant is still liable “for sanitation with respect to, and damage to the premises caused by the [ESA].” This means that a landlord does not need to take on any extra liability when it comes to the ESA. Upon termination of the lease, the landlord should check for any sanitation issues with or damage to the property, because those are things that the tenant is responsible for and for which the tenant cannot receive accommodations.

Is Joint Representation a Good Idea?

Is Joint Representation a Good Idea?

It is common for a group of people to want one attorney to represent them all in a legal matter. Whether it is a married couple looking for estate planning representation or if it is two people who own a property together and are both looking to evict a tenant or sell the property.

Attorneys can be expensive, so from an economic standpoint, it can be financially beneficial to have one attorney rather than paying two or more attorneys to work with you.

This may seem like a great idea, but for an attorney, it may cause some tricky ethical problems. Attorneys are inclined to zealously advocate for their clients. This can be difficult when there is more than one client involved. If the individuals that are being represented by one attorney, do not agree on the right way forward there can be issues. The individuals may even decide they want different things throughout the process.

In this scenario, you can expect the attorney to request to be allowed to withdraw as counsel because the attorney will not be able to take any action when it is against what one of the clients wants. If client “A” wants to dismiss the case, but client “B” wants to keep going, the attorney will not be able to do either action without going against one of their wishes and will need to withdraw.

Another issue for people considering joint representation is that the attorney-client privilege applies to the group of clients. That means if there is anything client “A” is trying to keep secret from the client “B”, the Attorney will be allowed to tell client “B.” Moreover, the attorney likely has to tell client “B” in order to protect client “B’s” interest in the matter.

If you are considering having one attorney represent you and another person or other people, be sure you have thought about what happens if you all disagree. You may save money if things go as planned. But, you may still have to hire a separate attorney to represent you, if complications arise between you and the other clients.

If you find yourself in this situation, please contact one of our experienced attorneys.

U.S. Supreme Court Votes Unanimously On Tax Lien Case

U.S. Supreme Court Votes Unanimously On Tax Lien Case

There are many cases decided by the U.S. Supreme Court that receive scant attention from the public. Despite ideological divisions among the justices, it is not uncommon for the Court to vote 9-0 in case. In the case of Tyler v. Hennepin County, Minnesota, the Court issued a unanimous decision concerning the constitutionality of a tax lien foreclosure.

Geraldine Tyler owed $15,000 in unpaid real estate taxes on a condominium she owned in Hennepin County, Minnesota. The County seized the condomin and sold it for $40,000, keeping the $25,000 excess over what Tyler owed in unpaid taxes. Tyler argued the windfall to the County was unconstitutional in violation of the Takings Clause of the Fifth Amendment. The Takings Clause provides that “private property [shall not] be taken for public use, without just compensation.” U. S. Const., Amdt. 5. The question the Court concerned itself with was whether the surplus funds from the sale of the condominium are protected from uncompensated appropriation by the County. The Court’s analysis provided a history lesson in our English common law roots:

Parliament gave the Crown the power to seize and sell a taxpayer’s property to recover a tax debt, but dictated that any “Overplus” from the sale “be immediately restored to the Owner.” 4 W. & M., ch. 1, §12, in 3 Eng. Stat. at Large 488–489 (1692). As Blackstone explained, the common law demanded the same: If a tax collector seized a taxpayer’s property, he was “bound by an implied contract in law to restore [the property] on payment of the debt, duty, and expenses, before the time of sale; or, when sold, to render back the overplus.” 2 Commentaries on the Laws of England 453 (1771).

Ultimately, the Court held that “Tyler has plausibly alleged a taking under the Fifth Amendment,” reasoning that a “taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc [treasury] than she owed.” Wisconsin’s law on foreclosure of tax liens, Wis. Stat. § 75.521, is similar to the law that was challenged in Tyler. While the Wisconsin law is still on the books, a challenge to its constitutionality seems inevitable.

If you have any questions about tax liens or foreclosures, please discuss it with one of our experienced real estate or tax attorneys.

Is That Damage to Your Vehicle Less Than $1000?

Is That Damage to Your Vehicle Less Than $1000?

For those who may have been involved in an non-injury minor car accident, you may have heard from the other driver or bystander, “that damage is under $1000, no need to get the police involved.” A recent Wisconsin Court of Appeals decision, County of Monroe v. Kling, albeit unpublished, shows that it is better to be safe than sorry.

Wisconsin law states that if the operator of motor vehicle is involved in an accident resulting in total damage to property owned by any one person to an apparent extent of $1,000 or more, the operator must immediately notify law enforcement of the accident by the quickest means of communication.§ Wis. Stat. 346.70(1). Unsurprisingly, the rub is what is “apparent extent?”

In County of Monroe v. Kling, Mr. Kling was heading home from work when he veered to the side of the road, hit a mailbox, overcorrected his steering, and drove into a ditch. Kling was unharmed, and he was assisted at the scene by a several bystanders. Kling could not drive his vehicle out of the ditch, as the tires had popped off their rims and the vehicle had grounded out in the mud. One of the bystanders asked Kling if he had contacted law enforcement; Kling had not. The bystander called law enforcement as Kling received a ride home. After Kling returned home, he called law enforcement and a tow truck driver, and he contacted the owner of the mailbox and offered to replace it. Kling’s call to law enforcement was 34 minutes after the bystander’s call.

At the repair shop, Kling’s tires were reattached to the rims and inflated, the car checked for leaks, but no estimate was made for any bodywork. Kling picked it up two days later. Law enforcement issued Kling a traffic citation in violation of §Wis. Stat. 346.70(1). Kling contested the ticket at a bench trial, focusing his defense that it was not apparent to him that his vehicle has sustained at least $1,000 of damage.

The responding officer was the State’s sole witness on the extent of the damage to Kling’s vehicle, playing portions of his body camera. The video showed an intact vehicle, no leaking fluids, and the only visible damage was deflated tires, and the passenger side panel appeared to have some damage and some bumper trim had fallen off. According to the officer, “that’s way over the threshold of $1,000.”

Kling presented evidence that the cost to tow and remount the wheels was $200.45, and he replaced the bumper a few years earlier and it had cost him about $500. He presented an eBay listing for a comparable bumper for $146.91. He did not provide any estimate for repairing the side panel. The trial court credited the officer’s testimony and said it was confident that the total damage was much more than $1,000. Kling appealed.

The appellate court’s decision hinged on the undefined term of “apparent.” Per the court, the term apparent means damage that is visible and obvious, regardless of whether later inspection reveals more. Any damage that would require specialized training or expertise to identify is not apparent. Also, “apparent” means at the accident scene, and while the factfinder can consider after-the-fact estimates or receipts, they are not directed toward the disposition o f the case. Crucially, the Court held that § 346.70(1) is a strict liability statute that does not require proof of subjective intent; “apparent extent” is an objective person test.

As such, the Court held: “I conclude that an operator of a vehicle must report an accident when it would be obvious to a reasonable person in the operator’s position, at the time of the accident, that the total costs of repairing the visible damage to any one person’s property to as good of a condition as before the accident equals or exceeds $1,000.”

The Court of Appeals upheld the Trial Court’s ruling, focusing on the damage to the side panel pushing the total cost above $1,000 and crediting the responding officer’s testimony and opinion. It is important to point out that this is not a published decision and cannot be cited for authority; also considering that Mr. Kling was unrepresented at the Trial and Appellate Courts, it would not be a good case to make established law. That said, there can be little doubt that the various charging authorities have knowledge of this decision. The next time you scrape a pole in a parking lot or get into a fender bender, to avoid a citation, it is best to call the authorities.