Legal Question in Real Estate Law in California

Re: Fences and trees encroaching on my property

These are different examples of trespasses to real property, and while the basic law is identical the practical solutions are somewhat different. In fact, you have really provided two separate questions, the one relating to fences and the one about trees.

The issue of the true location of the property line looms over the first, and possibly affects the tree question too. Are you quite sure of the true property line location? In most modern situations, the legal property line is the line that would be determined by competent surveyors working from recorded deed descriptions. In a few old cases, "agreed boundaries" and boundaries based upon historical fence locations, etc. were allowed to prevail, but in the 21st Century a good survey to interpret recorded property descriptions carries heavy weight in court.

The general rule is that a property owner can remove trespassing objects, including fences and tree limbs, from his property. A corollary to that rule is that it should be done in a way to avoid a disturbance of the peace. In other words, if the removal process is likely to cause a fistfight or gunshots in the night, you shouldn't do it. This is not just a rule of law, it is common sense.

As to trees, you can remove the trespassing limbs (at the point where they cross the boundary), but you must do so in a non-negligent way. That means in most cases using a certified arborist and not doing any cutting that the expert thinks might cause the tree to die or be subject to falling over on the neighbor's property.

As to the neighbor's liability: I would say the neighbor is liable for your reasonable expenditure to have the tree trimmed if he has refused to do it or have it done himself, and he is probably liable for the sap damage to the extent you could not have avoided it by parking elsewhere, but you cannot expose your car to repeated damage and let the damages meter run and expect a court to award you all the damages you incurred......you have to take reasonable steps to mitigate.

All in all, you have a first-class feud brewing here, and I think you should try to de-fuse things rather than fire all your legal-rights cannons in a single volley. Get the survey if you don't have one that's reliable and that left you with readable monuments. Then try negotiating from a position of superior information, both legal and engineering. Try to keep these matters out of court and off the police reports. Good luck.