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All About Trees

All About Trees

An Overview

This article should be viewed as information only and is not intended as legal advice.

If you are a land owner, it’s probably safe to say that you share a property line with someone. This article is intended to address some common issues involving trees that may be growing along your property line that you share with another person or entity. Although this article will try to answer many of your questions, realize that the laws pertaining to trees can be quite complex and that this article will only be able to provide brief outlines of certain situations which may or may not pertain to your exact case. It is also important to determine whether or not the tree is causing a nuisance( as defined under California Civil Code Section 3479) to the owners of the surrounding property. In short, a "nuisance" occurs whenever someone allows a condition to exist which prevents or disturbs your use or enjoyment of your property. If it is determined that the tree does in fact constitute a nuisance, then further options are available to the adjacent land owner.
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Trees and their Neighbor Related Problems

Usually, particularly when trees are close to the property line, chances are that there are some overhanging branches or roots which extend past the property line. Generally, this does not cause a problem between neighbors and in fact most of us rather like the beauty and privacy offered by foliage. At times though trees, and very commonly roots, can become a problem and although most of these difficulties can be easily settled, some cannot and turn into unpleasant disputes between neighbors. Putting it simply, the owner of the tree has an obligation to insure that the tree or any of its parts are not adversely affecting the property of an adjoining land owner.
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First, who Owns the Tree?

In order to answer this question you must simply look at the trunk. If the trunk is growing entirely on one piece of property, the person who owns that property is the owner of the tree. It makes no difference of whether or not branches or roots extend beyond or over the property line. The trunk alone determines the owner. Conversely, if the tree straddles the property line, the tree is referred as a “Boundary Tree” and both owners of the property are owners in common (California Civil Code Section 833-834). Once ownership has been determined it’s easier to further determine the rights and responsibilities of each of the involved parties.
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Fallen Leaves

Leaves that have fallen from you neighbor's tree onto your property are, in fact, your property. Falling leaves are considered a natural product of trees and are not something for which the owner of the tree can be held liable. Even if the leaves cause damage, like clogging your gutters or pipes, you have no legal claims against the owner of the tree. Accordingly it is not your neighbor's responsibility to clean or rake these leaves. Property owners, whether they own the tree or simply live next to it, are responsible for the cleanup of natural debris that enters their yard, no matter the source. You have many options when dealing with fallen leaves, but in no case can you carry them back onto your neighbor's property.
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The Branches

Most trees close to a property line will have overhanging branches. Generally, these branches are of no alarm, however at times overhanging branches can be a source of concern in several ways. They could be interfering with other trees or shrubs or just protruding into an area of your property that you would rather have as free space. The overhanging branches belong to the affected neighbor and the neighbor has the right to cut the branches back to the property line as long as the trimming doesn’t endanger the tree. It’s also important to remember that you cannot enter into the adjoining property without prior consent. In addition, you are not allowed to cut the entire tree down or to cut it in such a manner that it will kill the tree or harm or ruin the aesthetics of the tree. For instance you cannot trim a tree so poorly that it is lopsided and would perhaps topple over in the next storm.  If such an act occurs, California Civil Code section 3346 and California Code of Civil Procedure section 733 provide that the owner of the injured tree is entitled to monetary compensation equal to double the value of the destroyed property.   If it is determined that the tree was maliciously destroyed or cut down, the court can award damages equal to three times the value of the destroyed tree.  Even though only the reasonable costs of replacing destroyed trees may be recovered, the cost of replacing a fully grown tree can be quite substantial.  People who cause malicious damage to a tree or destroy it by cutting it down are subject to fines. Penal Code sections 384a and 622 make it a crime to harm or remove trees; fines may be up to $1,000 and imprisonment in jail up to six months.

Some municipalities have their own rules regarding the removal of trees.  Before you cut down a tree, even if the tree is located on your own property, check with the city  before proceeding.     

Overhanging branches can be more than just a matter of annoyance when they grow to be hazardous and present legitimate safety concerns for surrounding neighbors. Dangerous branches that cause or threaten damage can be designated as being a nuisance tree. A nuisance can be interpreted as something which interferes unreasonably with one’s use of one’s own property. (Civil Code 3479) An example could be a large branch hanging over your roof, that is consistently dropping leave or other debris onto your roof causing damage to the shingles; not to mention the possibility that the branch could break thereby destroying your roof and possibly injuring the home's inhabitants. It is the responsibility of the tree owner to take care of dangerous trees or overhanging branches. He has the duty to prevent nuisances that could adversely affect the property of an adjoining parcel of land.

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The Roots

Another area of concern is damage or danger caused by roots. As an example, roots can cause significant damage to a sidewalk that has been dangerously lifted out of its original position potentially leading to the possibility of tripping. Or, roots can extend under your driveway or home causing cracks or structural damage to surfaces and foundations. Additionally, pipes of all sizes and types have long had a history of being clogged or broken by invading roots. Fortunately laws are in place to protect the affected neighbor. If roots encroach under your adjacent property, you can sever the roots but only if the roots are in fact causing damage and then only if done reasonably (which may mean by a professional). Additionally the owner of the encroaching tree can be held liable for the actual out-of-pocket expenses incurred as a direct result of the tree's encroaching roots. Unfortunately, this damage is sometimes hard to prove and costly to enforce. Further complicating the matter is the 1994 case of Booska v. Patel (California Case Law Booska v. Patel, 24 Cal. App. 4th 1786 (1994)) . In this case 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 the property line. You must take into account the health of the tree before you start cutting or chopping. The mere intrusion of tree roots onto your property does not give you the unregulated right to trim. You do have the legal right to sever roots but only the roots that may be causing actual damage.
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Who is Liable for Falling Trees and Branches

This question is not always easy to answer. Sometimes the liability will be with the tree's owner and at other times the liability may fall with the adjacent landowner. The owner of the tree has a responsibility to inspect their trees to determine if a tree is healthy or hazardous. If the tree poses a hazard, the owner has an obligation to remove hazardous branches and if necessary remove the entire tree. If the tree owner was negligent or careless in that they failed to inspect their trees or that they failed to maintain their trees after warnings or visual signs of problems, then the tree owner is responsible for the resulting damage. Examples of visual warnings could include severe leaning, dead branches, the absence of expected leaves, or rotted out trunks. Conversely, if the tree was well maintained and a storm caused a tree or branch to fall, then the courts will find the damage was due to an act of nature and the tree owner will not be held responsible, or liable, for the resultant damage. Since the responsibly of tree maintenance lies with the tree's owner it makes sense for him/her to visually inspect and prune trees at least once yearly.
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Homeowner's Insurance

Homeowner's insurance may or may not be of any benefit to you when it comes to trees and the destruction they cause. Most homeowner's insurance companies will refuse to cover any damages that didn't arise suddenly or accidentally. As an example, damage to a sewer pipe or septic tank, because the condition didn't happen suddenly, would not be covered. Conversely, damage caused by a falling branch would in all likelihood would be covered. Typically, if a neighbor’s healthy tree falls on your home, your homeowners insurance policy would respond to damage and debris removal, but on the other hand, if your tree fell on your neighbor's home, your neighbor's insurance would be responsible for the damage.
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Taking Action and Other Available Resources

Taking action against your neighbor because of a problem tree may not always be in your best interest. In the case of root damage, you must be able to prove that your neighbor's tree is doing the damage. This is often times difficult or expensive because you would need to hire an expert on trees and then you would have to go to court to collect damages. Often these court cases can be prolonged and in the end you could lose your case. Compounding the issue, even if you did win, in all likelihood you would not be able to recover the cost of your attorney plus other expenses. Sometimes, no matter what the law dictates, it's better to spend money to fix a situation instead of paying the same money to a lawyer and losing a neighbor. Additionally, some city governments often step in to make the owner take care of dangerous trees. Some cities have ordinances that prohibit maintaining any dangerous condition, including a hazardous tree, on private property. To enforce such an ordinance, the city can demand that the owner remove the tree or pay a fine. Some cities will even remove such a tree for the owner. See below to find local ordinances and state laws to locate your city's laws and policies on trees. If you don't get help from the city, and the neighbor refuses to take action, you can sue. You can claim that the dangerous tree is actually a "nuisance" and that it interferes with your use and enjoyment of your property. Again the burden of proof that the tree constitutes a real danger to you or your family, is yours. And keep in mind that just because a tree blocks your view or deposits unwanted leaves or debris that the tee will not automatically become a nuisance.
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Finding Help

California Tree Law
City of San Mateo - Trees
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© 2015 by Pirrone & Pirrone LLP  All rights reserved.

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© 2014 by Pirrone & Pirrone LLP  All rights reserved.