As discussed in our article on nuisance, property owners have certain duties to maintain and utilize their property so that it does not constitute a nuisance for either other property owners nearby or the public. The traditional cases involved inappropriate use (a smelly pig farm in a residential area or a saloon next to a school) or obnoxious use (loud noises that make adjoining locales unpleasant for living, etc.)
One “nuisance” often alleged involves the encroachment of trees, shrubs and other vegetation from one lot onto an adjoining lot. This issue can easily become an emotional one with a property owner loving a large elderly tree while the adjoining neighbor complains about the branches overhanging the property.
Does one have a right to trim trees or branches that actually extend into one’s property? Does one have a right to enter adjoining land to trim trees?
In California there is ample statutory authority to answer these questions and this article discusses both the law…and some practical considerations a property owner may want to keep in mind before pulling the chain saw out.
In California a duty is imposed upon a landowner to prevent nuisances that could adversely affect the property of an adjoining owner of land. “Nuisance” is usually defined as a substantial interference with the “right to use and enjoy” the land and it may be intentional or negligent in origin. Some nuisances impose severe statutory liability if they involve hazardous conditions or substances.
A nuisance must derive from the defendant’s activity or neglect. If a nuisance conflicts with another person’s quiet enjoyment of the use of the adjoining property, a cause of action lies including the right to seek an injunction ordering the end of the nuisance by removal, repair, rehabilitation or demolition. The burden of proof is on the party claiming the nuisance and damages can be assessed against the defendant if the plaintiff has been injured.
The encroachment of shrubs or vegetation, including a tree, upon a neighbor that causes any damage could be held to be a nuisance and damages could lie against the owner of the land on which the tree was located. In most states, a landowner is held to a duty of “common reasonable prudence” in maintaining shrubs and trees on their own property so as to prevent injury to others or to property of another. Assuming damage is demonstrated, or clear potential for damage, liability would exist. A typical example is a half broken large limb overhanging the roof of an adjoining neighbor which will clearly break and fall in the next storm.
It should be noted that minus some degree of failure to maintain, a property owner is not responsible for Acts of God, e.g. unforeseen events that can cause damage to the adjoining lot. A example would be a lightning strike which causes a burning tree to collapse on the neighbors automobile next door.
Some damage is prolonged and fully foreseeable, such as tree roots damaging a fence or concrete walkway. Roots can also be considered encroachment.
A tree that is on two lots, a “boundary tree” is considered jointly owned and should not be removed without mutual consent or court order. And in most jurisdictions, leaves falling onto an adjacent lot are not considered a nuisance and are the responsibility of the owner of the lot with the leaves to remove. Such falling of leaves is considered a “natural occurrence” and not a nuisance. And recall that in the United States, there is no easement for light, so if a tree causes shade or blocks a view, that is not considered in itself a nuisance.
Every state allows property owners to trim and remove branches, shrubs and roots that invade their property but most states require the owner to first give the owner of the tree or shrub adequate notice to solve the problem him or herself and advise them that such cutting is planned. Usually, the trimming may only be up to the property line and one cannot enter the adjoining property without prior consent unless there is immediate danger to life or property.
One is not allowed to cut the entire tree down or to cut it in such a manner that it will kill the tree. Indeed, some jurisdictions do not allow such cutting that would create greater harm or ruin the aesthetics of the tree. A good example is to cut the tree so that it is lopsided and likely to topple over in the next storm. There are also various county or city statutes that may apply, including those that protect various species of trees or animal life or prohibit the cutting of shade trees above a certain size. Penalties and even criminal liability may lie for ignoring these laws.
California Basic Statutes:
The following California statutes should be reviewed by anyone considering taking action:
Section 833 Civil Code:
Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another.
Section 834 Civil Code:
Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common.
Section 841 Civil Code:
Coterminous owners are mutually bound equally to maintain:
1. The boundaries and monuments between them;
2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.
Section 841.4 Civil Code:
Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this code.
Section 3346 Civil Code:
(a) For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary, or that the defendant in any action brought under this section had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, the measure of damages shall be twice the sum as would compensate for the actual detriment, and excepting further that where the wood was taken by the authority of highway officers for the purpose of repairing a public highway or bridge upon the land or adjoining it, in which case judgment shall only be given in a sum equal to the actual detriment.
(b) The measure of damages to be assessed against a defendant for any trespass committed while acting in reliance upon a survey of boundary lines which improperly fixes the location of a boundary line, shall be the actual detriment incurred if both of the following conditions exist: (1) The trespass was committed by a defendant who either himself procured, or whose principal, lessor, or immediate predecessor in title procured the survey to be made; and (2) The survey was made by a person licensed under the laws of this State to practice land surveying.
(c) Any action for the damages specified by subdivisions (a) and (b) of this section must be commenced within five years from the date of the trespass.
Section 3479 Civil Code:
Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.
Section 3480 Civil Code:
A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.
Section 3481 Civil Code:
Every nuisance not included in the definition of the last section is private.
Section 3482 Civil Code:
Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.
Section 3483 Civil Code:
Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by a former owner, is liable therefor in the same manner as the one who first created it.
Section 3484 Civil Code:
The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence.
Section 3501 Civil Code:
The remedies against a private nuisance are:
1. A civil action; or,
Section 3502 Civil Code:
A person injured by a private nuisance may abate it by removing, or, if necessary, destroying the thing which constitutes the nuisance, without committing a breach of the peace, or doing unnecessary injury.
Section 3503 Civil Code:
Where a private nuisance results from a mere omission of the wrongdoer, and cannot be abated without entering upon his land, reasonable notice must be given to him before entering to abate it.
Some common sense is useful in determining how to handle encroachment. One mistake we often see is that the neighbors quickly become angry and that trimming is done to “punish” another in such a way that feelings are exacerbated and lawyers become wealthy.
If there is truly a potential for danger to life or property, substantiate that danger via an expert letter from someone with credibility and make sure is it sent to the neighbor. If you are the neighbor whose tree is being threatened by claims of encroachment, do the same in reverse.
The court would take such a report quite seriously and if the experts indicate a pressing danger and the neighbor owning the tree ignores it, a suit for injunction is called for which can be drafted and filed quite quickly. The expert report is the key.
Some cities have their own programs for trimming dangerous trees and a call to the relevant department in the city would make sense.
The worst thing you can do is trespass to trim the tree. Absent true emergency, avoid doing that. Remember, you have to live there after the trimming is done and aside from likely litigation, you will have hard feelings around your home.
If you own the tree which you love, most of the time a tree expert can advise as to how to protect the tree without angering or endangering your neighbor. It may cost a bit to get that advice. Most likely, attorneys are more expensive than tree experts.
And both neighbors should remember the words of John Milton: “Accuse not Nature, she hath done her parts; Do thou but thine…”