Legal Question in Real Estate Law in California

The roots are trespasses and the owner of the tree is thereby committing a trespass. The proper way to address a trespass falls into about three categories. First, for those which are criminalized by the Penal Code, one can call the police and hope. For the vast majority of civil trespasses, the law frowns on self-help, and the remedy is obtained by going to court and obtaining an order, injunction or judgment. Finally, for matters involving overhanging branches and invasive roots, and a few similar matters, the courts have made a limited exception to the no-self-help rule through decisions approving the affected neighbor cutting the offending roots or limbs at the property line. However, one of the leading cases approving such self help says that the cutting must be "done in a non-negligent manner" (I believe this is an accurate quote). The judge who wrote the decision didn't go on to define those words, but I have always told clients and LawGuru questioners that I believe this means the neighbor must do the work (or have it done) without creating a risk that the tree will die or topple in a windstorm, and if it does, the neighbor would probably be liable.

I also suggest that the neighbor get an opinion from a licensed arborist and following the arborist's written advice, since doing an act following and in accordance with the advice of an expert tends to dispel a claim of negligence.

If the self-help option is too risky, and it may be, and attempts to negotiate a solution fail, you are probably stuck with going to court with a suit for trespass and private nuisance, which you will probably win, but at the expense of costs, fees and good relations with the neighbor.

I have handled tree matters, property rights, easements, negligence, trespass, and others related. You prepare to go to court for a declaratory judgment based on negligence, that you have a right to cut down the tree. Also, you seek injunctive relief to remove the tree. Yes you need an arborist. You have an attorney prepare the complaint, send over a copy to your neighbor, and they will probably settle. If not, you file and proceed in court. Let me know if you want me to handle this for you.

Best,

Daniel Bakondi, Esq.

[email protected]

415-450-0424

The Law Office of Daniel Bakondi, APLC

870 Market Street, Suite 1161

San Francisco CA 94102

http://www.danielbakondi.com

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