Legal Question in Real Estate Law in California

Tree root damage
My neighbors tree, a 3 story high
Sycamore is located right on our
property line, but 100% on her side.
It is 5 ft from my garage. The roots
have lifted up the foundation of my
garage. I have spent $2,700 for the
repair and removal of the roots which
I have documented by photographs.
In addition I brought my neighbor
over to witness the damage when
the contractors were here removing
the root damage. Other roots are
growing under my sidewalk along the
garage where I can see the begining
of damage there too. I am also
concerned with the foundation of my
house. I am trying to be reasonable
with my neighbor, all I am asking for
is that she have he tree removed and
I will cover the expense of the
repairs. She is being very difficult and
does not want to remove the tree.
Do you consider that I might win a
judgement in court and possibly if I
choose to proceed have my costs of
damage repair reinbursed?

Asked on 3/12/08, 4:17 am

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

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Re: Tree root damage

You seem to have all the elements of a strong case for both damages and an injunction requiring removal of the tree. I suggest doing two things: (1) find a licensed arborist who will inspect the situation, give you a written report, who would be willing to testify in court if necessary, and preferably who has some experience in court testimony. Then (2) find a lawyer who has handled a tree-root case previously and discuss his or her thoughts about (and charges for) preparing and carrying out a suit for trespass and private nuisance.

I think both theories should be pleaded and the relief requested should be all your past damages and an injunction against future threatened harm.

Unfortunately, matters of this kind are unsuited for small claims and for in pro per representation; you will need to go to superior court, you will almost certainly need a lawyer, and also an expert witness (the arborist) to confirm the cause of the damage, the necessity of removing the tree (if it is necessary), and the likelihood of future damages. I don't think you'll be able to recover attorney fees in a case of this kind.

You'll also need evidence as to the dollar amount of past and future damage. Your photos will be helpful but you might need live testimony at trial from your contractor.

Let's hope filing and serving the suit causes the neighbor to come to her senses and settle before trial.

Answered on 3/12/08, 12:52 pm

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