Indiana Business Lawyer Blog

In Surrisi v. Bremner, a 2011 Indiana Court of Appeals decision, the court held the Bill of Sale issued to the buyer (Bremner) invalid, as the Bill of Sale named business personal property which was not included in the Notice of Sheriff’s Sale.

Bremner, a creditor of the sellers (Surrisis), was the highest bidder at the Sheriff’s Sale and the sheriff issued a Bill of Sale that included business personal property that was not included in the Notice of Sale. The court noted that although the Agreed Judgment between the two parties stated the Sheriff’s Sale would include both real and personal property, the Notice of Sheriff’s Sale, praecipe of sale, and tax documentation, only listed the real property as being sold at the sale. Relying on a 2000 Colorado Court of Appeals decision, the court found that no notice of sale was given with respect to the business personal property, so such property could not have been sold at the sheriff’s sale. The court also stated that nothing in the settlement agreement prevented the business personal property from being sold at another sheriff’s sale, leading the court to further presume that only real property was to be sold at the Sheriff’s Sale in question.

Jeremy Fetty is a partner in the law firm of Parr Richey Obremskey Frandsen & Patterson with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

Questions sometimes arise about the ownership of and responsibility for trees that grow on or near the boundary line between adjoining properties. Which landowner has the legal right and responsibility for the removal or care of such trees? As decided by the Indiana courts since 1933, the answer depends on the tree trunk’s precise location.

Recognizing that trees can be pleasing to one person and a nuisance to another, our courts have fashioned the following general rules for resolving these disputes.

• If the trunk of the tree is located entirely on one’s land (even if its limbs overhang the boundary onto a neighbor’s land), the person on whose land the trunk is located owns the tree and he has the absolute right to either keep it or completely remove it. This is true even though the tree may provide shade, enjoyment, or value to the adjoining owner.

• If the trunk is located entirely on one owner’s land, an adjoining owner has no right to remove or destroy the tree even though it may cause him personal inconvenience, discomfort, or damage. However, if the branches extend over the line or if the tree sheds debris causing the neighbor harm, the adjoining owner has the right to either (i) trim the limbs and branches that overhang onto his property or (ii) bring suit against the tree owner for the damages resulting from the overhanging limbs or falling debris. But in performing any trimming work, the neighbor may not trespass onto the tree owner’s land.

• If the tree is located such that its truck extends onto both properties (even if nearly all the trunk may be on one side), the law considers the tree the “common property” of both landowners. In this event neither owner has the right to remove or injure the tree without the other’s consent. Even minor trimming should not occur until communication occurs between the owners.

Also keep in mind that the boundary location may be uncertain or subject to dispute. Professional surveyors often disagree about the precise location, especially if the original survey is not fairly recent. Historical fences or longstanding maintenance practices can also affect a court’s determination of the actual legal boundary.

Judges having to resolve these disputes will expect neighboring landowners to reasonably communicate in search of a mutually satisfactory resolution. Those efforts will normally result in a workable agreement and avoid what might otherwise end up as contentious and expensive litigation.

Kent M. Frandsen is a partner at Parr Richey whose practice focuses on civil litigation. The statements contained herein are for information purposes only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have questions regarding this article, please contact an attorney.