Legal Question in Real Estate Law in California
Question: The tree root of a tree on my property has cracked the driveway of the neighbor next door. He demands that I cut the root and fix his driveway. I told him that once the root leaves my property into his property, it is his problem to cut the root and fix his own driveway, as he now has control of the root on his side of the property. So who is liable to fix the driveway?
2 Answers from Attorneys
You are. The neighbor has a right to cut the roots at the property line, but not a duty to do so. The roots and limbs of your tree, once they cross the property line, are a trespass and you are liable as the trespasser for any damage they do. Somewhat similar reasoning as when your dog or your child do damage to a neighbor's property.
The remedies available to the neighbor are a bit unusual because a limited amount of self-help is permitted; whereas with most cases of trespass the injured party must go to court for an order permitting or requiring relief, in the case of trees and shrubs the offended neighbor may resort to self-help by doing the trimming up to the property line without a judge's prior OK, but must do so in a responsible, non-negligent manner, and cannot ask to be reimbursed for costs.
If the neighbor chooses, he may go to court for monetary damages and other orders, rather than do the trimming himself. Such a suit could be for trespass, private nuisance, or both.
If you started a campfire on your front lawn and an ember flew up and landed on your neighbors roof, burning part of his house down, do you feel you have no responsibility?
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