OVERVIEW

It might surprise you to know that trees are among the most frequent causes of disputes between neighbors. Tree-related neighbor disputes take many forms, including, most commonly, disputes related to:

  • property damage associated with encroachment of a neighbor’s roots or branches onto your property;
  • damage caused by falling trees or branches; or
  • damages for destruction or harm to another’s trees.

This article will focus exclusively on damages caused by encroaching roots and branches and destruction or harm to another’s trees.

WHO OWNS THE TREE?

Before getting into the specifics, however, I should start with how one determines who the owner of a tree is. In most cases it’s pretty easy. The owner of a tree is the one upon whose land the trunk of the tree sits, regardless of whether or not the tree’s roots or branches extend onto someone else’s property (Civ. Code, § 833). If a tree’s trunk happens to rest on two different properties, then those property owners own the tree as tenants in common (Civ. Code, § 834). Such trees are sometimes referred to as “line trees.”

RELYING ON SELF-HELP TO SOLVE THE PROBLEM OF ENCROACHING BRANCHES AND ROOTS

Encroaching Branches

A frequent source of tension between neighbors arises when the branches of a tree extend onto someone else’s property. Sometimes, the result of such branch encroachment is something positive—like in the case of a desirable fruit tree. Many of us have enjoyed an orange or lemon gifted to us by the branches of a neighbor’s fruit tree hanging over our property. But more frequently, such encroachment is seen by the affected neighbor as a negative. Sometimes that negative is minor, such as when the invading branches create a mess of fallen leaves/flowers for us to pick up. But other times encroaching branches can result in costly damage, such as in the case of branches that have grown into the side of a neighbor’s home or damaged power/cable lines.

Regardless, such encroachment can be a source of serious tension between neighbors. Fortunately, victims of such branch encroachment have a powerful remedy at their disposal: “self-help.”

If branches from a neighbor’s tree are hanging over onto your side of the property line, you have the right to remove those portions of the tree that encroach on your land. It doesn’t matter whether or not the overhanging branches have caused damage to your property. Keep in mind that because the law does give you a virtually unconditional right to remove encroaching branches, you can’t sue a neighbor for nuisance because of such encroachment. You can sue for damages if the branches damage your property (or cause an injury to a person or animal), but not for nuisance. Also keep in mind that different cities in California have local laws protecting certain types of trees, and those laws might trump a homeowner’s right to the self-help described here.

Encroaching Tree Roots

A homeowner’s self-help rights in the case of encroaching roots, however, is not as clear as it is in the case of overhanging branches. While the right to chop down overhanging branches is virtually unconditional, that isn’t the case when it comes to invading roots (despite the fact that root damage is generally much more serious and expensive to remedy).

Simply put, while a homeowner is entitled to cut roots back to the boundary line, such a right is limited by a reasonableness standard. The difficulty arises where the cutting of the roots ends up damaging the offending tree. There is some case law in California that seems to permit a homeowner to cut a neighbor’s encroaching roots only if the roots are causing some damage to the homeowner’s property (e.g., neighbor’s roots are causing cracks in your hardscape or pool). And then, even in such cases where damage has occurred, if the offending neighbor’s tree was damaged during the root removal, the courts in California will conduct a “balancing test” in assessing whether the removing party acted reasonably under the circumstances. The court will, for example, look to see if some other remedy might have solved the problem without causing the damage to the offending tree (e.g., such a as installation of a root barrier). In short, your right to cut your neighbor’s encroaching roots down will be weighed against your obligation to not damage your neighbor’s tree.

FILING A LAWSUIT AGAINST THE NEIGHBOR

If you don’t feel comfortable engaging in self-help by removing the encroaching branches and roots yourself, you don’t have to do that. You can also file a lawsuit alleging that the branches or roots are interfering with your right to enjoy your property. This right is called the right to quiet enjoyment. When someone, like your neighbor, interferes with your right to quiet enjoyment, that neighbor can be held liable for engaging in a private nuisance.

If you prevail in a private nuisance lawsuit, you may be entitled not just to injunctive relief, but also to monetary damages. Monetary damages will include the costs necessary to repair or clean your property, as well as other losses that you can prove were caused by the encroaching branches or roots. Except as described below, you will not, however, be entitled to your attorneys’ fees and costs.

Recovering Your Attorneys’ Fees

Assume for a moment that you move forward with lawsuit against your neighbor and that you prevail at trial. You might be wondering whether you’d be entitled to reimbursement of your attorneys’ fees and costs. The answer, unfortunately, is no (except, as is discussed below, you live in an HOA). In California, there is no automatic “loser pays” system like those that exist in other parts of the world. Instead, under California law, a prevailing party is only entitled to attorneys’ fees and costs if at least one of the following is true:

  • there is a statute that awards the prevailing party their attorneys’ fees and costs; and/or
  • the involved people are parties to a contract that contains an attorneys’ fees and costs provision.

In the case of a statute, there are several laws on the books that specifically state that a plaintiff who brings a civil lawsuit to enforce that statute is, if successful, entitled to reimbursement of their attorneys’ fees and costs. For example, several Labor Code statutes award attorneys’ fees to an employee who prevails.

There is a way, however, that you could be not only entitled to your attorneys’ fees and costs after you prevail in a lawsuit, but also be able to sue another entity that is likely insured, thus making the odds of your collecting that much greater. To take advantage of that method, however, you and your neighbor have to be members of a California HOA.

WHAT IF I LIVE IN A COMMUNITY GOVERNED BY AN HOA?

If you’re a member of an HOA and your neighbor’s branches or roots have damaged your property, you’re in a much better position than the situation described above. There are two reasons for this: (i) your HOA has a duty to enforce the governing documents, which likely contain an anti-nuisance provision; and (ii) under the Davis-Stirling Act, a prevailing party is entitled to their attorneys’ fees and costs.

The California Supreme Court has made it clear that an HOA has a legal duty to enforce the HOA’s governing documents. (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361.) Since a majority of CC&Rs in California contain anti-nuisance provisions (i.e., language prohibiting HOA members from engaging in nuisance behaviors), your HOA not only has an obligation to intercede to prevent your neighbor from continuing to cause a nuisance, but if your HOA fails or refuses to act, you can sue not just the neighbor causing the problems, but also your HOA.

If you live in a condominium or planned housing development, then you live in a common interest development. One thing that all common interest developments have in common is that they are governed by an association of members (i.e., the owners) who enjoy the use of shared common areas and amenities. And, no matter what kind of common interest development you live in, if it’s in California, it’s governed by the Davis-Stirling Act. Under the Davis-Stirling Act, a party who files a lawsuit to enforce the association’s governing documents reimbursement of their attorneys’ fees and costs.

Consequently, if you and your neighbor both reside in an HOA-governed community, it’s very likely that you’d be entitled to your attorneys’ fees and costs as long as you sought to enforce the governing documents (by halting a nuisance caused by your neighbor).

If you want more information about California’s HOA laws, read the “Owner’s Guide to California HOA Laws.” 

DESTRUCTION OR HARM TO A NEIGHBOR’S TREES: BE CAUTIOUS

Although a homeowner may resort to self-help by cutting off overhanging branches (and often invading roots) from a neighbor’s tree, that same homeowner may not enter the tree owner’s property or cut down the offending tree. Not only would such action constitute a trespass, which has criminal implications, but such conduct would leave the homeowner open to significant liability (Code Civ. Pro, § 733). In fact, in some instances, the trespassing/destroying homeowner could be liable for triple damages if the destruction/damage is deemed intentional, or double damages if the injury is deemed “casual or involuntary” (Civ. Code, § 3346).

CONCLUDING THOUGHT

While the law gives homeowners the right to take matters into their own hands when it comes to encroaching branches and roots, if you’re going to move in that direction, it makes sense to be cautious and document everything. Alternatively, you’re also free to involve the courts by suing your neighbor for causing a nuisance, or if you live an HOA, for violating the governing documents. Obviously, for the sake of neighborly peace and harmony, every effort should be made to speak to the offending owner and ask him or her to remedy the problem. Only if the neighbor refuses to act should you proceed to do act as described above, and then only within the limits of the law.