Legal Question in Real Estate Law in California
Tree damage
My neighbors have melalucca trees that over the years have grown to heights of 20ft . They line the side of my home. After years of growth they became almost a wall of trees. Our cc&r's , deed restrictions, say no fence , wall , hedges, can be more than 7 ft from the ground. Because they are trees, my neighbor felt that rule did not apply to them and cut the trees down to 9 ft. These trees were 20 ft tall. The trees died shortly after that. The neighbors just had their soil tested and found that high levels of cholorine was in their soil. They are blaming me. The trees were cut 4 years ago and have not recovered since. Can they hold me liable for this cholorine found in their soil and the death of their trees. I had nothing to do with it. I do have a pool and hope fully the roots have not damaged it. The neighbor is saying the soil has to be put in a special landfill for toxic soil and this will cost thousands of dollars. He said I put the cholorine in the soil to kill his trees. We have a fence that divides our homes , plus I have a cement driveway on my side. I did not do this. What should I do???
3 Answers from Attorneys
Re: Tree damage
Facts may be proved by circumstantial evidence and one needs not to be caught in the act. If you are served with a summons and complaint, you will need to answer. If there is not a cause of action for negligence, then, your insurance will not defend. If you wish to head the matter off call me directly at 16192223504.
Re: Tree damage
You need a scientist or two before, or maybe at the same time, you hire a lawyer.
Since there is a possibility that chlorine or chlorides leaked or splashed out of the pool and its associated apparatus, you'll need to be prepared to prove that didn't happen.
I'm not sure what an environmental scientist will do to gather evidence, but my guess is that he would bore a series of small holes to remove soil samples for testing. The holes would be at varying distances between the pool and the trees, maybe a dozen in all. The soil chemistry expert should probably work with an arborist who would look at the condition of the trees, maybe take plant tissue samples to test for excessive chlorides, and advise the soils person on how deep to sample (based on the trees' root depth).
Hopefully, the soils and plant tissue tests will tend to disprove the neighbor's theory about migration of chlorine (or chlorides) through the soil to the tree roots.
The arborist should also give you a written opinion on the cause of death. More likely it was the cutting back than the chlorine, or chloride. By the way, many Southern California soils are naturally high in chloride.
If the tests go against you and tend to prove that chlorine migration did affect the trees, you have two other lines of defense. The first is to shift the blame, i.e., maybe the pool service company spilled chemicals, or maybe the original installation was defective.
The other possibility involves an argument that since the trees were a nuisance anyway, the neighbor was under a duty to remove them and therefore he has suffered no compensable harm. There are California decisions placing rows of shrubs or trees in the same legal category as fences when it comes to enforcement of laws and CC&Rs. Although the spite fence law says fences over 10 feet are nuisances, if your CC&Rs said 7' is the max, that may govern in court, too.
Re: Tree damage
I counsel all to try to resolve neighbor disputes informally. Remember, that while you may be okay with a fight, your spouse or kids may not. You still live next door to the dispute.
Most HOA have clauses in their CCRs that disputes between home owners must be arbitrated. That clause usually deters suits because of the added expense to hire an arbitrator. Read the CCRs and see what the rules are for this dispute.
Anyway, for your neighbor to hold you legally responsible, either in an arbitration or Superior Court Lawsuit, he has to prove by a preponderence of the evidence that you actually did something to kill his trees. That means that he has to proffer proof that you actually poured chlorine in his soil and that the extra chlorine in the soil killed his trees. Generally, a suspicion that you did something to hurt his trees is not suficiant to hold you liable. Problem, aggrieved people usually "bend" the truth.
Good Luck.
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