Legal Question in Real Estate Law in California

Re: trees

You he is to trim the tree so that no part of your tree his pain over onto his property how ever high the tree is. I would talk with him about splitting the cost of the trim. I would also make sure that you control the trimming process. If he just trim was his half, or what ever portion of the tree that his pain over onto his side that will make that tree very top-heavy onto your side. I have seen situations where top-heavy trees fall into the property is where the tree is most top-heavy, basically back onto your property and possibly into your house. I had this on both sides of my house many years ago but had to very nice neighbors who cooperated fully in both situations where we were able to trim the trees keep them trimmed, keep the trays and the neighbor relationship.I have been practicing law in the San Francisco Bay area for approximately 35 years and expert in the area in the category in which your question is placed. I feel I can help you in this matter and if you wish to consult with me please contact me at 925-945- 6000.

Re: trees

First, is this a true boundary-line tree, or does the trunk stand entirely on your property? This answer assumes the latter. If the tree is a true boundary tree you have a stalemate; neither of you can force the other to do anything, nor can either of you damage or destroy the tree without the consent of (or liability to) the other.

The general rule in California with respect to intruding tree limbs and/or roots is that they constitute a "trespass to land." The offended neighbor may trim the roots or limbs at the property line, but must do so, if at all, in a "non-negligent manner," to quote a leading case. While the case doesn't define "non-negligent" in any detail, this would probably include avoiding creating a fall-over hazard or killing the tree.

On the occasions that tree suits go to trial, the damages are usually limited to payment for (or recovery of) the costs for professional trimming. Additional damages for the trespass itself are usually considered unnecessary.

What would happen in a situation where trimming to the extent necessary to eliminate the trespass cannot be done without creating a hazard or killing the tree? I think at this point a judge would have two possible ways to go. She could find it impractical to abate the trespass and award compensatory (money) damages. Or, he might determine that the facts showed the intruding tree was not just a trespass, but also a private nuisance, and order it cut down and removed.

When does a trespass become a nuisance as well? In general, when it unreasonably interferes with an owner's (or tenant's) use and enjoyment of his/her property (and it doesn't need to be a trespass to be a nuisance or vice-versa, but they sometimes overlap).

Is the pepper tree a nuisance because it interferes with pool maintenance? That's a tough question. Sometimes the answer is found in the doctrine called "coming to the nuisance." If you build your dream house next door to the stockyards, you probably lose a nuisance suit over the noise and smell. The fact that the neighbor built his pool where leaves of an existing tree might fall into it is a form of coming to the nuisance (if indeed the tree rises to the category of nuisance in the first place).

On balance, I think it likely a court would award the neighbor some monetary damages on a one-time basis and allow you to keep the tree, untrimmed, or only partly trimmed. See the New York case of Boomer v. Atlantic Cement (probably available on line).

I also recommend having a certified arborist look at the situation and advise you as to what can be done safely, and the cost. Get a written report in case you need it in small claims court.