By JUDD MATSUNAGA
In California, where trees are plentiful, homes are close to each other, and homeowners often have a disproportionate sense of entitlement, tree disputes are commonplace. Whether the issue is one of: (1) roots lifting driveways; (2) trees dropping debris; or (3) trees blocking views, it is important not to underestimate the complexities of the dispute before you decide to act.
Encroaching branches and roots: You might think that you have the absolute right to cut offending branches and roots that encroach upon your property. Not so. California “tree law” was changed in the case of Booska v. Patel (1994), when a California appellate court held that a neighbor does not have the absolute right to cut encroaching roots and branches so that they end at his or her property line.
In this case, a man named Booska owned a 30- to 40-year-old Monterey pine. The roots of the tree grew into property owned by a man named Patel. Apparently, the roots were cracking Patel’s walkway. Therefore, Patel hired a contractor to excavate along the length of his yard three feet deep. This excavation severed the roots of Booska’s tree.
Booska sued Patel for injuries to the tree, claiming the tree was now unsafe and unable to support life. As a result, the tree owner, Mr. Booska, removed the tree at his own expense. Patel argued that he had an “absolute right” to sever the roots on his property without regard to any injuries inflicted on Booska’s land.
The California appellate court analyzed Patel’s argument and the cases he cited and concluded, “Whatever rights Patel has in the management of his own land, those rights are tempered by his duty to act reasonably.” In other words, the health of a tree must be taken into account.
The rule is simple: You may trim branches on your side of the property line, but you can’t touch branches on your neighbor’s side. Trim, but do not butcher. For if you hack at the offending vegetation too much, and you manage to kill the plant in the process, you’ll be liable to your neighbor for going too far.
You may think, “If the tree dies, I’ll buy another tree – it can’t cost that much.” Not so. The courts have stressed that only reasonable costs of replacing destroyed trees with “identical or substantially similar trees” may be recovered (Hassoldt v Patrick Media Group, Inc., 2000). The cost of a mature, 20-year-old tree may be quite expensive.
For example, in Rony v. Costa (2012), a neighbor hired an unlicensed day laborer to trim a cypress tree that was encroaching over his property. But the worker also cut (i.e., hacked with a chainsaw) substantial parts of the tree that were on the tree owner’s land, damaging the tree.
The tree owner sued. The court ruled that the neighbor had “drastically reduced the tree’s aesthetics and compromised its ability to provide shade” and awarded $7,530 in compensatory plus $15,000 in additional actual damages for “loss of aesthetics.” Total actual damages equaled $22,530. The award was then doubled pursuant to statute, resulting in a damages award of $45,060.
Tree Dropping Debris: Another area of contention is tree debris, e.g., leaves, fallen fruit, and sap. For example, your neighbor’s tree sheds leaves into your pool, or his pine needles fall onto your roof, clogging your rain gutters. You say, “Isn’t there a law that prevents the neighbor from having a tree that causes such a mess in the first place?”
The legal term for this type of breach is “nuisance.” A nuisance under California law is defined as anything that “is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…” (Civil Code 3479)
Unfortunately, when it comes to tree debris, the law is on your neighbor’s side. Generally, you do not have the right to insist that your neighbor take responsibility for the natural growth and resulting debris of his tree so long as his tree is reasonably maintained. Going to court to have a neighbor ordered to pick up fallen debris is not practical or economical. Sorry.
Trees Blocking Views: If your neighbor’s tree(s) and hedges block your view, check with your city to find if there is any “view ordinance” in your neighborhood. If so, you’re lucky – you’ll be able to get your neighbor to remove any tree(s) blocking a view that existed at the time of purchase or acquisition of the view claimant’s property (although you may need an attorney’s help).
If your city does not have such a “view ordinance,” all may not be lost. Under a little-known California law (Civil Code Section 841.4), trees and hedges planted in a row to form a barrier may be deemed a fence. Therefore, if they exceed 10 feet in height, they can be deemed a nuisance and hence illegal under Wilson v. Handley (2002).
In conclusion, the best approach to work out a tree problem with your neighbor is to talk to your neighbor. Informally and kindly ask your neighbor for his help resolving the problem. It may turn out that the neighbor was unaware of the problem and may be quite willing to accommodate you in some way that is satisfactory to both sides.
Some common sense is useful in determining how to handle the problem. Perhaps his gardener can trim his tree in the manner necessary to keep it from encroaching into your property, or prune the tree a bit more frequently. This approach shifts the risk of damage to the tree owner. If both parties each give a little, compromise should successfully resolve the matter.
But, who are we kidding? If everyone was reasonable, there would be no attorneys. And in California there are a lot of them. If the “good neighbor” attempt fails, before you take matters into your own hands, consider consulting with an attorney regarding your options. Typically a letter should be sent, and if that fails, then a lawsuit may need to be filed.
Try calling your local county bar association for help finding a real estate attorney. In Los Angeles County, the phone number for the Lawyer Referral and Information Service (LRIS) is (213) 243-1525 (Monday through Friday, 8:30 a.m. to 5 p.m). Each referred client will receive a free 30-minute consultation with the attorney.
Finally, if you do decide to cut encroaching tree branches or roots yourself, you must be careful how you do it. You must act “reasonably.” If a court finds that you negligently damaged the neighbor’s tree, you can be held liable for damages, which your homeowner’s policy may not cover.
Judd Matsunaga, Esq., is the founding partner of the Law Offices of Matsunaga & Associates, specializing in Estate/Medi-Cal Planning, Probate, Personal Injury and Real Estate Law. With offices in Torrance, Hollywood, Sherman Oaks, Pasadena Fountain Valley, he can be reached at (800) 411-0546. Opinions expressed in this column are not necessarily those of The Rafu Shimpo.