What Do You Do When A Neighbor’s Landscaping Is A Nuisance?


by Robert Dailey

rdailey@mcgrathnorth.com
(402) 341-3070

Many homeowners, in a Homeowners Association, have had difficulty with a neighbor whose landscaping detracts from their home’s value or beauty. This could be because the neighbor’s landscaping might have trees that block your view or hang over property boundaries and cause damage to your house. What can an owner do to combat these types of nuisances or invasions?

When you live in a neighborhood, especially a newer neighborhood, that is subject to a Declaration of Covenants, Conditions and Restrictions document (commonly referred to as a “CCR”), you likely have much greater remedies available than in an older neighborhood. A CCR is a document recorded against all of the homes in a neighborhood by the developer when the neighborhood is originally developed. Everyone in that neighborhood, and that Homeowners Association, can take advantage of this CCR. The downside is that you are also subject to the restrictions in the CCR.

The first thing we have to do is look at the language of the CCR. Very often a CCR will limit the planting of trees or other tall shrubs that would block sightlines between houses and features that provide a very attractive view (such as lakes, fountains, etc.). In that case, you need to look for language in the CCR that prohibits the planting of trees in these areas.

Usually, the CCR will have language that allows the developer to enforce these sightline restrictions. However, the CCR usually has language allowing individual owners to enforce these sightline restrictions. Typical language in a CCR providing for this usually says something along the lines of:

The Developer or any owner of a Lot named herein shall have the right to enforce by a proceeding, at law or in equity, all reservations, restrictions, conditions, and covenants now or hereinafter imposed by the provisions of this Declaration either to prevent or restrain any violation or to recover damages.

Another approach for an Omaha homeowner to take is to look at the sections of the CCR granting easements. There are usually several utility easements reserved here in favor of local utility companies. Though these utility easements are reserved in favor of the utility companies, very often these sections will state that no trees or tall shrubs can be planted in the easement ways. Very often, this is an absolute prohibition, not a prohibition only to be enforced by a utility company. Therefore, an individual owner may enforce this restriction (without being a utility company).

You might also have a neighbor who has planted trees that you find to be a nuisance for whatever reason. For instance, the offending neighbor might have planted trees close to the border that shed branches onto your house. If these are large branches, they can cause substantial damage to your house. Many trees have flowers that are visually attractive but emit a very strong and obnoxious odor that might last for several weeks. What to do then?

Again, look at your CCR. A typical CCR will have a restrictive covenant that prevents obnoxious activities on private lots which might annoy neighbors. For instance, one ordinary CCR says:

No obnoxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to neighborhood, including, but not limited to, odors, dust, glare, sound, lighting, smoke, vibration, and radiation.

You can see how falling limbs or obnoxious odors emitted by flowers would fall into the category of obnoxious or offensive activity which is an annoyance or nuisance to a homeowner. 

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