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.”
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.
A homeowner’s 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.
Destruction or Harm to Someone Else’s Tree
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).
While the law gives homeowners the right to take matters into their own hands when it comes to encroaching branches and roots, it makes sense to be cautious and document everything. 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 so, and then only within the limits of the law.