May 20th, 2013
Tree disputes are one of the top disputes 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 the fence and cracking your driveway. What are you to do?
California Civil Code section 733 bars anyone from going onto the land of another and cutting or removing trees. That makes logical sense because you have to trespass on their land 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 any absolute 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 are allowed to trim the tree on your land in a way that the tree is not damaged. Keep in mind that if you cause the tree to die or cause so much damage that it’s value is destroyed, 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. In addition, damage that destroys a “protected tree” such as a Heritage Oak can bring substantial additional penalties. So what are you to do?
First – Talk to your neighbor – by explaining the situation and showing the damage, it is very possible 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;
Second – Talk to an arborist – before you start any substantial cutting, talk to a tree professional 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;
Third – Use professionals – if the trimming work is substantial, be sure to use a licensed, bonded tree contractor. This reduces the risk of unexpected damage and gives you protection in the event that unexpected damage does occur.
The bottom-line is that you do have rights. You are not required to sit there and let your property be destroyed by branches and roots. Your neighbor cannot use their land to cause damage to the land of another. This is called “nuisance” and, if the neighbor refuses to fix the problem you have a right to take action. 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.
BPE Law has been assisting our clients with their real estate, business, and other legal needs ever since we started doing business. For over 20 years, we’ve advised thousands of property owners, investors, and their agents in their legal transactions and disputes. If you have questions concerning your rights and obligations in any legal matter, give us a call at (916) 966-2260 or e-mail me at firstname.lastname@example.org. Our $200 flat fee consult for new clients may get you the answers you need for the questions you have.
The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.