Legal Question in Real Estate Law in California

Re: Tree damage, liability in killing a tree

The one overall rule in situations like this is to be reasonable and neighborly rather than relying upon some supposed legal right; even if you have a right to do something, if you do it without considering the consequences some judge may find a reason to slap you down.

The basic rule about invading roots: a tree whose trunk is solely on the land of one belongs to him, even though its roots overhang or invade the land of a neighbor. However, the adjoining owner has the right to cut the roots or limbs, but only to the property line. The roots and limbs are considered to be trespassing, but there is no right to sue, the right to cut them is deemed an adequate remedy. The roots must be cut in a "non-negligent manner." What this phrase means is for the two owners to work out. Two California cases may shed some light, and you can look them up at your county law library -- the librarian can help you find the right casebooks:

Booska versus Patel (1994) 24 Cal.App.4th 1786; and

Bonde versus Bishop (1952) 112 Cal.App.2nd 1.

You probably can't make the neighbor cut down the tree. You theoretically could sue on the basis that it was a private nuisance, but I think your chances of winning are unimpressive.

Do you have to share the cost? My impression is that each neighbor would be responsible for the work on his own property, both from the standpoint of deciding what to do, then retaining and paying the contractor (if used). Imposing costs and doing work across the property line would be difficult.

Finally, if possible try to find a way to do this project cooperatively. Maybe some re-grading or different design would avoid expensive and possibly fatal root-cutting. If the tree dies, you neighbor will not be delighted.