Public & Private Nuisances

To Disclose or Not to Disclose? That is the question.

You just want to sell! That means disclosing less is more right? Often, most sellers are conscientious about pointing out what their home that doesn’t work.  But when it comes to the question about neighborhood noise or nuisances, they usually check “no” and move on to the next question. We can understand the hesitation about disclosing details because you fear – often with good cause – that it may make their home unsellable. Agents want the best for you and want your house to be as sellable as possible. Most importantly, we want you not to be stuck with any crazy lawsuits or legal fees you may incur based on what you do NOT say.

Did you know that noisy neighbors and or any annoying noise in the neighborhood might be something to disclose?  Private nuisance is characterized as the unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment. It means when someone prevents or disturbs your use or enjoyment of your property. You may not notice or be considerably disrupted by people who love loud musical sounds, or the regular visit of raccoons, or the neighbors that don’t pick up after themselves, or let their pets run wild and bark 24/7. But your buyer may be quite bothered by these things and may come after you for not being upfront.

How about regular public nuisances? Yep, that too, especially California has astringent laws regarding this. A public nuisance can be anything that threatens the health, moral, safety, comfort, convenience, or welfare of the community. Some states would say that this could mean A meth house in the neighborhood, a bear that regularly visits and scares the children. A lot of regular traffic.

Each neighborhood may have the occasional few nuisances: The friendly neighbor who loves to use his leaf blower early Saturday morning, the occasional noisy repairs, the heavy metal band that practices in the garage down the street, the kids playing basketball. Most often nuisances are uncommon and unintentional. When they are continual issues, they need to be disclosed; your future buyers may feel that they diminish the enjoyment of the property as well as decrease its value.

Take away for sellers: The deal with disclosure laws is that they are very state-specific. What a seller must disclose in one state isn’t necessarily something that needs to be revealed in another. Make sure you check with the state in which you reside or are selling. The thing about disclosure is that you aren’t required to disclose what you don’t know, so sometimes looking too deep into the history of your home can be a bad thing. Be honest. Try to think of seller disclosures like a Carfax report.

A message to buyers: Be a little wary when there is no mention of neighborhood noise or nuisances. Perform your own investigation. One way is by visiting with the neighbors and asking some pointed questions about the neighborhood. Another is driving around the neighborhood at different times during the day and evening. But despite these efforts, a neighborhood nuisance is frequently beyond the capability of a buyer to discover.

Who is Responsible for Tree Damage?

During this season inclement weather can cause numerous trees and branches to fall, often onto adjacent properties. This can become a tricky situation, you may wonder who is responsible to clean up the damage? The answer can be complicated and varied dependent upon several factors. Below are some questions to consider:1. Who owns the tree? Pursuant to California Civil Code Section 833, if the trunk of a tree stands wholly on the land of one landowner, that landowner owns the tree regardless of whether its roots, foliage, or branches have grown onto the land of another. However, if the trunk of a tree stands partly on the land of two adjoining landowner, then both landowners own the tree. (Civil Code Section 834).

2. Is the tree’s owner liable for any damage? Not necessarily. It is the responsibility of every property owner to maintain their property, including trees, in safe hazard free conditions. The owner of the tree may be responsible for damage caused to a neighbor’s property, but only if it can be found that the tree’s owner failed to properly maintain the tree. Generally, such failure can be considered “negligence” and a negligent owner can be liable for all damages resulting from their neglect. However, in general the damaged party still must prove that the owner was negligent. For example, was the tree dead or dying from an insect infestation? Or did the owner trim the tree on his side only and thus render the tree unstable? If the tree’s owner failed to act “reasonably” in periodical inspections and maintaining their trees, they may be held liable for subsequent damage to others.

3. What about an “Act of God”? An Act of God is an unforeseeable event, i.e.: heavy storms, wind, lightning, that causes trees or limbs to fall. We commonly see this term as an exclusion from insurance policy coverage. However, an act of God is not always a successful defense from liability particularly if there has been personal injury or significant property damage. Court’s may often find sufficient evidence that the tree’s owner was somehow negligent and thus provide recourse for the injured party. Such a finding will typically utilize the property owner’s insurance coverage.

4. What about branches and debris that falls into the adjacent property? It is not an uncommon occurrence for a neighbor’s trees to drop leaves, fruit, branches, or even limbs onto their property. If there is no physical damage, California law does not provide any relief for the offended neighbor – unless they can prove the tree was improperly maintained. For branches and debris, the cost of legal action can easily exceed the cost of clean-up. While the neighbor cannot force the tree’s owner to clean up or be reimbursed, a co-operative approach may be the best option for both parties to employ.

5. Can a property owner use “self-help” to stop damage from a neighbor’s trees? California law is clear that a neighbor must act “reasonably” in trying to stop actual or potential damage from a neighbor’s trees. If the tree is causing actual damage such as roots uplifting a deck or branches pushing down a fence, the owner can be held liable for “nuisance”, that is allowing his use of his property to damage the property of another.

Simply cutting off encroaching tree roots or branches may kill the tree or render it unstable and dangerous thus exposing the cutter to substantial legal liability for all damage including replacement of the damaged tree. No such action should be undertaken without first seeking to get the tree’s owner to remedy the problem. If they refuse, then the neighbor should engage the services of a licensed arborist to trim the roots and branches is such a way as to reduce the property damage while not injuring the tree. If this cannot be done, then the neighbor should bring a legal action against the tree’s owner for nuisance which could compel him to trim or even remove the tree and repair any damage.
6. Must a seller disclose an offending tree? If a person is selling a home and there is any history of problems with adjacent trees, this should always be disclosed even if there has been no actual physical damage. Giant oak trees can provide great shade and color, but the leaves may fall everywhere creating a clean-up issue. The rule should always be: if the Seller thinks that this has been an issue, it would be reasonable to conclude that their buyer will likely feel the same way. Absent of disclosure, the Seller could be looking at a non-disclosure lawsuit when the new Buyer must start raking leaves every weekend.

This article is not intended to be legal advice, and should not be taken as legal advice. Every situation requires review of specific facts and history, and a formal agreement for service. This is provided to give a general idea of situations that may occur. Sources taken from the
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5 Ways to Increase That Curb Appeal

1) Numbers

Consider a font upgrade. The whole world is about calligraphy and lettering now. Why not give your house numbers a new look? Try to match your new house numbers with the finish that is on your exterior light fixtures.

2) Mailbox Makeover

Paint it or get a new one. There are kits you can buy online. Pinterest has a lot of creative ideas. If you have a simple mailbox mounted on your house, this home improvement project should take less than an hour to complete. If you have a full-size mailbox on the road, plan for at least two hours or so to complete the project.

3) Accessorize

Replace your front door, or paint your front door, replace, or paint door knobs, add a fancy door knocker, get a new welcome mat, place a seasonal wreath on your front door. Get a new doorbell.

4) Plants

Go green, get rid of any plants that have decided to brown. Nothing is more welcoming than flowers. Fill pots and hanging planters with colorful blooms. Try giving your potted plants height and depth. You can make them taller, layer or even stack them and maybe place them on a chair or bench. For a smaller entryway use a vertical planter.

5) Yard

Clean your yard. Prune your bushes, trim any low-hanging tree branches, and cut down any overgrown hedges. You’ll first need to do a primary cleanup of your property. That would entail removing dead leaves, fallen branches, trash, and picking up any of your dog’s “business.” Grab a garbage bag, a pair of gloves, and start trash picking. It’s also important to remove any clutter on the outside of your home. This could include toys in the yard, your garden gnome collection, and broken patio furniture. Create a minimalistic, yet inviting, space outside your home.

Is it OK to Cut Down my Neighbor’s Trees?

Tree disputes are one of the top conflicts between property owners. A neighbor’s tree may be extending over your fence, blocking your view, dropping leaves into your pool, and their roots may be destroying your fence and cracking your driveway. What are you to do?

California Civil Code bars anyone from going onto the land of another and cutting or removing trees. That makes logical sense because one would have to trespass to do so. But what about when those limbs cross onto your land. Do you have an absolute right to cut these? The answer is “No”!

As a string of California cases has repeatedly affirmed, a neighbor does not have the right to cut off encroaching roots or branches so that they don’t cross over the property line. Before doing so, you must first evaluate the health of the tree and then act reasonably in any trimming that you attempt. By “reasonable,” the law means that you must exercise care to avoid unnecessary damage… in short, you can’t kill it. California Civil Code section 3346 considers the encroachment of branches and roots onto your property to be a nuisance. You can trim the tree on your land in a way that the tree is not damaged. If you cause the tree to die or cause so much damage that its value is lost, you can be held liable for up to three times the damage. That means determining the value of the tree which can easily be more than $10,000. Also, a damage that destroys a “protected tree” such as a Heritage Oak can bring substantial additional penalties. How should you proceed?

1. Communicate with your neighbor –Open the dialogue, by explaining the situation and showing the damage, it is quite likely that the two of you can agree to a trimming plan. Maybe the neighbor is also concerned about the tree growth, and you can collaborate on an equally beneficial remedy.

2. Consult a professional arborist – before you start any substantial cutting, talk to a tree expert and find out what is safe to do and what is not. There are proper ways that trees can be trimmed to get you the benefit you want with the least damage to the tree. To minimize the risk of unexpected costs, ensure that whom you select to consult with is a licensed, bonded tree contractor.

Rest assured, is that you do have rights. You can be proactive and protect your property from being destroyed by branches and roots. Your neighbor cannot use their land to cause damage to the area of another. This is called “nuisance” and, if the neighbor refuses to fix the problem you have the right to act. You may get legal assistance and get a Court Order compelling the neighbor to remove the encroachment and repair the damage. If there is some damage imminent, such as the neighbor’s tree is about to fall over, or the roots are about to break your plumbing, faster action may be called for. In these cases, use a professional and take plenty of pictures.

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Preparing to Buy a Home

During the loan process your credit, income and asset situation is vital to maintain. Here is a non-exhaustive list of some “good ideas and bad ideas,” to follow once you have decided to buy a home. Please read carefully.

GOOD IDEA… staying current on all existing credit accounts.

BAD IDEA… applying for any new credit, opening any new credit accounts, applying for a higher credit limit or closing any currently opened credit accounts.

GOOD IDEA… maintaining normal spending habits

BAD IDEA… making any large purchases on your current credit accounts or increasing your spending.

GOOD IDEA…providing all documents requested up front and keep all original paystubs, bank statements, tax returns and other financial documentation handy as you receive it. Please keep in mind you may be required to update your loan file during the process.

BAD IDEA… co-signing for anyone else for a home or car loan or any other type of debt.


GOOD IDEA…notifying us if you are planning to receive any gift funds for the down payment or any other costs.

BAD IDEA…Disputing any credit amounts on your credit report before or during the loan process-disputed accounts can alter your credit score.

GOOD IDEA… notifying us if you have any financial expenditures coming up during our loan process that will lower your assets.

BAD IDEA…making any type of employment changes or compensation without checking with your lender.

GOOD IDEA… notifying us if you have any upcoming employment changes, raises, promotions, change in pay structure, etc.

BAD IDEA…. closing any current bank accounts, opening any new bank accounts, or more money around between accounts.

GOOD IDEA… notifying us if you are going on vacation at any time during the process.

BAD IDEA… depositing any cash to your bank account without contacting your mortgage consultant to discuss the requirements of documentation and whether or not it will be accepted as funds for closing.

GOOD IDEA… being flexible and make yourself available for your home inspection and your closing appointment.

Reverse Mortgage

The Home Equity Conversion Mortgage (HECM) is FHA’s reverse mortgage program, which enables you to withdraw some of the equity in your home.  The HECM is a safe plan that can give older Americans greater financial security. Many seniors use it to supplement Social Security, meet unexpected medical expenses, make home improvements and more.  You can receive additional free information about reverse mortgages in general by contacting the National Council on Aging at (800) 510-0301. It is smart to know more about reverse mortgages, and decide if one is right for you!

  1. What is a reverse mortgage?

A reverse mortgage is a special type of home loan that lets you convert a portion of the equity in your home into cash. The equity that you built up over years of making mortgage payments can be paid to you.  However, unlike a traditional home equity loan or second mortgage, HECM borrowers do not have to repay the HECM loan until the borrowers no longer use the home as their principal residence or fail to meet the obligations of the mortgage.  You can also use a HECM to purchase a primary residence if you are able to use cash on hand to pay the difference between the HECM proceeds and the sales price plus closing costs for the property you are purchasing.

  1. Can I qualify for FHA’s HECM reverse mortgage?

To be eligible for a FHA HECM, the FHA requires that you be a homeowner 62 year of age or older, own your home outright, or have a low mortgage balance that can be paid off at closing with proceeds from the reverse loan, have the financial resources to pay ongoing property charges including taxes and insurance, and you must live in the home. You are also required to receive consumer information free or at very low cost from a HECM counselor prior to obtaining the loan. You can find a HECM counselor online or by phoning (800) 569-4287.

  1. Can I apply for a HECM even if I did not buy my present house with FHA mortgage insurance?

Yes.  You may apply for a HECM regardless of whether you purchased your home with an FHA-insured mortgage or not.

  1. What types of homes are eligible?

To be eligible for the FHA HECM, your home must be a single-family home or a 2-4 unit home with one unit occupied by the borrower. HUD-approved condominiums and manufactured homes that meet FHA requirements are also eligible.

  1. What are the differences between a reverse mortgage and a home equity loan?

With a second mortgage, or a home equity line of credit, borrowers must make monthly payments on the principal and interest.  A reverse mortgage is different, because it pays you – there are no monthly principal and interest payments.  With a reverse mortgage, you are required to pay real estate taxes, utilities, and hazard and flood insurance premiums.

  1. Will we have an estate that we can leave to heirs?

When the home is sold or no longer used as a primary residence, the cash, interest, and other HECM finance charges must be repaid.  All proceeds beyond the amount owed belong to your spouse or estate.  This means any remaining equity can be transferred to heirs.  No debt is passed along to the estate or heirs.

  1. How much money can I get from my home?

The amount varies by borrower and depends on:

  • Age of the youngest borrower or eligible non-borrowing spouse
  • Current interest rate; and
  • Lesser of appraised value or the HECM FHA mortgage limit of $625,500 or the sales price

If there is more than one borrower and no eligible non-borrowing spouse, the age of the youngest borrower is used to determine the amount you can borrow.

  1. Should I use an estate planning service to find a reverse mortgage lender?

FHA does NOT recommend using any service that charges a fee for referring a borrower to an FHA-approved lender.  You can locate a FHA-approved lender by searching online at or by contacting a HECM counselor for a listing.   Services rendered by HECM counselors are free or at a low cost.  To locate a HECM counselor Search online or call (800) 569-4287 toll-free, for the name and location of a HUD-approved housing counseling agency near you

  1. How do I receive my payments?

For adjustable interest rate mortgages, you can select one of the following payment plans:

  • Tenure– equal monthly payments as long as at least one borrower lives and continues to occupy the property as a principal residence.
  • Term– equal monthly payments for a fixed period of months selected.
  • Line of Credit– unscheduled payments or in installments, at times and in an amount of your choosing until the line of credit is exhausted.
  • Modified Tenure– combination of line of credit and scheduled monthly payments for as long as you remain in the home.
  • Modified Term– combination of line of credit plus monthly payments for a fixed period of months selected by the borrower.

For fixed interest rate mortgages, you will receive the Single Disbursement Lump Sum payment plan.

  • Single Disbursement Lump Sum – a single lump sum disbursement at mortgage closing.
  1. What if I change my mind and no longer want the loan after I go to closing?  How do I do this?

By law, you have three calendar days to change your mind and cancel the loan.  This is called a three day right of rescission.  The process of canceling the loan should be explained at loan closing.  Be sure to ask the lender for instructions on this process.  Mortgage lenders differ in the process of canceling a loan.  You should ask for the names of the appropriate people, phone numbers, fax numbers, addresses, or written instructions on whatever process the company has in place.  In most cases, the right of rescission will not be applicable to HECM for purchase transactions.



***US Department of Housing and Urban Development

Buying vs Renting

What Are the Advantages of Owning a Home?

  • Greater privacy.
  • Homes typically increase in value, build equity, and provide savings for the future.
  • Your costs are predictable and more stable than renting because they’re ideally based on a fixed-rate mortgage.
  • Potential for rental income.
  • Greater creative freedom.
  • The interest and property tax portion of your mortgage payment is a tax deduction.
  • There’s pride in homeownership, which also closely ties you to your community.


What Are the Disadvantages of Owning a Home?

  • Homeownership is a long-term financial commitment.
  • You’re responsible for all maintenance on your home. This can include inexpensive repairs like fixing a broken toilet to complex and costly repairs likereplacing a furnace.
  • Although mortgage payments are usually fixed, they’re generally higher than rent payments.
  • Buying a home requires a down payment, closing costs and moving expenses.
  • The value of your house may not increase – especially during the first few years.


What are the Advantages of Renting?

  • Renting a home can be cheaper than buying a home. Your payments tend to be lower than a comparable house payment. Also, your rent may cover utility costs (additional savings).
  • You have more flexibility when you rent. Most leases are for 12 months. So, if your job requires you to move frequently, renting can be a desirable alternative to owning.
  • Your landlord, not you, is responsible for performing nearly all maintenance and repair work on the property.

Financial Disadvantages of Renting

  • There is no tax break for renting. You won’t be able to claim any deduction for mortgage interest and property taxes when you file your tax returns.
  • Your housing costs aren’t fixed like they are with a fixed-rate mortgage. Your rent will most likely grow from year to year.
  • No building of equity.