Legal Question in Real Estate Law in California

Re: Neighbors request for damages

First, a court unfortunately will not be able to take into account your mother's age, how long she has lived in the property, how long the neighbor has lived there, the fact that your mother is widowed, and the fact that you consider the cost of clearing to be too expensive. A court must apply the law.

The fact that your mother was widowed after 52 years is irrelevant in this matter. Likewise, the fact that no one else has complained is irrelevant--why would anyone else but the neighbor complain about a trespass onto the neighbor's property? Perhaps the logic will be clearer to you if you think in terms of how you would feel if the situation were reversed and the neighbor was infringing on your mother's property. She owns the property and trees and is responsible if they invade the neighbor's property. She has no right to grow her trees on the neighbor's property any more than the neighbor has a right to grow trees on her property.

Your statement that the costs of cutting and clearing are high is probably the reason the neighbor is asking for so much money. It may be that $5,000 fairly reflects the cost of taking care of the problem.

I would suggest you take the letter you received to an attorney, who can examine all the facts and advise you. In the long run, that will save you money. A good attorney should be helpful in reaching a compromise with the neighbor without going to court.

Re: Neighbors request for damages

I suggest you spend a little money and have an attorney respond to this bogus claim. Your mother is not reponsible to her neighbors for damages caused by tree roots which may (or may not) have invaded the neighbor's septic system. Septic system problems are inevitable, and after several years, always require expensive maintenance. The reason I suggest an attorney letter is that the attorney can bark at these rude barbarians and tell them to leave your mother alone and to send all further communication about the matter to the attorney.

Re: Neighbors request for damages

When trees growing on the land of A send their roots under the land of B, this constitutes at least a technical trespass. B would have the right to cut the roots, but must do so in a non-negligent manner. If the roots invade B's septic system, the technical trespass is elevated to a private nuisance, and B has a right either to abate the nuisance or to sue A for money damages.

This is a somewhat technical and theoretical analysis of a situation that is a common problem between neighbors, and I don't mean to imply that your mother is certain to lose any lawsuit brought by her neighbors here. On the other hand, any suggestion that the neighbor is totally in the wrong and can't win is incorrect.

I believe the threat conveyed by the 'notarized letter' (an odd way to make a threat, by the way, are you sure it wasn't a small-claims summons and complaint or the like?) should be taken seriously and that you, your mother and the neighbor should have a fact-gathering negotiation. At some point you will need local legal advice, but you should certainly try to settle peaceably before a suit is brought against your mother that she might lose but in any event would have to defend.

Again, I'm not predicting your mother would lose a suit over the roots, but don't assume she's certain to prevail either. There is case law in California going well back into the 19th Century making landowners liable for damage from roots of their trees invading neighbors' lands.