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If you live in Los Gatos, or anywhere along the Santa Cruz Mountains like Almaden, Saratoga or
Los Altos, you probably live with trees very near your home, as the San Jose area values its "urban forest". And often
enough, those trees arch over fences and property lines.
.jpg) Ever wonder how tree ownership works in regard to property
lines? Well, last week I found out. I had a tree and property line question here in Silicon Valley so called the
California Association of Realtors legal hotline and spoke to an attorney about it. (The lawyer
referenced case law and sent me info on it: Miller and Starr §§ 14:15, 14:16.)
If the tree trunk is located wholly on one property, the tree is "owned" by that
property owner. Even if the branches go over the property line. If the trunk straddles the property line, you have a
shared tree.
What about trimming those branches that go over a neighbor's yard?
First of all, this is the wrong time of year for trimming trees. It is best to do it in spring. But if tree branches are
an issue for someone now, the neighbor with the branches reaching onto his or her yard has the right to trim those
branches back to the property line (and pay for it himself or herself). The neighbor cannot demand that
the tree owner pay to trim the branches. And the neighbor cannot harm the tree or kill it (or chop it down).
If the neighbor harms the tree, he or she could be liable for damages.
This is also true of the roots. The neighbor can trim the roots if they are really causing a problem, but
cannot harm the tree. Cutting back roots can cause trees to die or become so unstable as to fall down, so trimming roots
should be the last resort.
The tree owner's responsibility regarding the tree and the property adjacent to it is simple: if the tree harms
the neighbor's property, the tree owner could be liable for damages. So enormous oak trees with limbs hanging
over a neighbor's roof could spell disaster (oak trees are known for simply dropping big branches on hot summer days).
Tree branches interwoven with phone lines could be a problem in a winter storm too.
It's always best to talk with the neighbor before doing anything, of course, and to give them a little notice. If you're
the neighbor, ask when the tree owner wants to trim the tree.(It will probably be in spring.) If you're the tree owner,
ask your neighbors when you plan to trim your tree if they'd like you to trim the part hanging into their yard too. Some
will say yes, and some no!
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Comments (14) :: Post A Comment! :: Permanent Link :: Email This Entry
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
Posted by: Barrie Leonard
Date: Dec. 26, 2007
I was just served papers for small claims court by my neighbors friend due to a tree that drops pine needles on their roof whenever the wind blows in that direction. The branches do not cross the property line ... their issue is the needles. I have cut the tree back in an attempt to please them, but they want the tree removed. I enjoyed your article, but cannot find anything online regarding the case law stated in the article (Miller and Starr §§ 14:15, 14:16) and I would like to bring something to court to submit as evidence. Can you please direct me to your source?
Sincerely,
Barrie Leonard
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
Hi Barrie,
I'm sorry to hear that you were served with papers. I guess the neighbors feel that the pine needles are a nuisance.
My source for the over the phone for the California Association of Realtors Legal Hotline. Her source was the case law cited above, which addresses branches but not pine needles (or sap or other fallout from trees). So I'm not sure if that case law would help you.
However, all case law is findable online. The decisions are availble through Lexis Nexis at no cost and perhaps you'd like to wade through those. It does involve registering but is very simple to use. Visit http://www.courtinfo.ca.gov/opinions/ which will eventually lead you to http://www.lexisnexis.com/clients/CACourts/ click the button for a combined search and type in the phrase you want to search. I did not try pine needles (or sap - might be relevant since it can also come out of a tree) but you might want to give that a try.
Barrie, when you get through this, would you mind letting me know what the small claims court judge has to say? I would like to add that info to this blog post since I get people looking at it almost every day, and you may not be the only one dealing with this issue.
Best of luck to you!
Mary Pope-Handy
Los Gatos
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Dead tree on shared property that needs to be cut down, with a nasty neighbor
Posted by: keeley
Date: Jan. 15, 2008
HI, I live in Portland Oregon, I have a 80ft dead fir tree in my back yard that is partly on my neighbors property that needs to be cut down, I would like her to pay for half the cost as it is a "community tree" but she is very hard to deal with, in fact she will not talk to any of the neighbors, never has. How can i find documentation to send to her certified mail along with the quotes and a letter from my home owners stating that the tress is a hazard, saying that she is in fact responsible for half the cost of the tree, and if the tree were to cause any damage in a storm she would be responsible according to the home owners for half the cost of damages. I am a single mom and do not want to have to seek legal help if i could just find the info and send it off to her. HELP...
Thank you in advance for your help.
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
Hi Keeley,
That sounds like a tough situation! I can't give you any legal advice (that would be practicing law, for which I'm not licensed) but I can suggest that you visit www.LawHelp.org. That's the website for the Legal Aid Society. Are you familiar with it? Legal Aid is a GREAT service to assist people who need legal counsel or information but don't have a lot of money to spend on it. (My dad is a retired attorney so I always have heard wonderful things about this service.) Anyway visit LawHelp.org and click on the link for your state and you should be put in touch with some knowlegeable, helpful people.
Please let me know how it turns out!
Warm wishes,
Mary
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RE: Dead Trees Near the Property Line
Posted by: Roger Luebkeman
Date: Jan. 25, 2008
Are there any laws in San Jose that would require an owner of a large dead pine tree to cut it down before it falls and causes damage?
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
Hi Roger,
I'm not a lawyer and really don't know. You might call the city offices and ask. There is probably a procedure for situations like this. Best of luck to you!!
Mary
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
Posted by: Robert
Date: Mar. 3, 2008
Hi Barrie -
Here is some research I have done in regards to tree trimming and property lines. This research was done for a case I am involved in, so this information may or may not apply to your case. (I can not give legal advise).
a. “Property owners in every state have the right to cut off branches and roots that stray into their property. In most states this is the only help provided by the law, even when damage from a tree is substantial. This right to cut away at somebody else’s property is not written down as state statute or local ordinance. It is a common law right, created by court decisions.” – Nolo, “Neighbor Law”, 5th edition, p66
Michelson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931), helped establish this “self-help” right.
b. “Generally, the neighbor who does the trimming must pay for it himself.” – Nolo, “Neighbor Law”, 5th edition, p67
The prevailing rule that “no landowner has a cause of action from the mere fact that the branches of an innoxious tree, belonging to an adjoining landowner, overhang his premises, his right to cut off the overhanging branches being considered a sufficient remedy.” Granberry v. Jones, 216 S.W.2d 723 (Tenn. 1949); Whitesell v. Houlton, 2 Haw App 365, 632 P2d 1077 (1981)
c. Some states allow for remedy beyond “self-help”
i. “Massachusetts Rule”
Protruding branches or roots of planted or natural trees on adjoining land are “damnum absque injuria,” which means it is no violation of their rights, although the injured party retains a right of self help. Michelson v. Nutting, supra.
"The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor's property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance." Ponte v. DaSilva, 388 Mass. 1008, 446 NE2d 77 (1983).
“Massachusetts Rule” is criticized as being outdated because it evolved when people lived predominately in rural settings. The court noted that the Massachusetts Rule seems ill suited to modern conditions where neighbors live in close proximity to one another. Fancher v. Fagella (VLW 007-6-098), Virginia Supreme Court / 2007 WESTLAW 22683665 (Va. 9/14/07).
ii. “Restatement Rule”
Imposes an obligation upon a landowner to control the landowner’s encroaching vegetation when the vegetation is “artificial” (i.e., planted or maintained by a person), but not when the encroaching vegetation is “natural.” Restatement (Second) of Torts §§ 839, 840 (1979).
Most states have rejected the “Restatement Rule” because the distinction between artificial and natural vegetation is unworkable given the inherent difficulty of ascertaining the origin of a particular tree or plant. Harvey v. Hansen, 445 A.2d 1228, 1231 (Pa. Super. Ct. 1982). This would lead to the anomaly of imposing liability upon one who improves and maintains his property, while precluding liability of an adjacent landowner who allows the natural condition of his property to “run wild.” Harvey v. Hansen, supra, 445 A.2d at 1231; Fancher v. Fagella, supra.
iii. “Virginia Rule”
Provides that the injured landowner is limited to self-help unless the encroaching tree or plant is “noxious” and causes actual harm to the neighboring property. Smith v. Holt, 5 S.E.2d 492, 495 (Va. 1939).
The “Virginia rule” was recently overturned by Fancher v. Fagella, supra.
a. “Noxious” trees and vegetation depends upon a very vague and ultimately “unworkable” concept as noxious is in the eye of the beholder. The court concluded that it would overrule the Virginia precedent establishing the “Virginia Rule” and adopted the Hawaii rule as to responsibility for invading roots.
b. The Supreme Court of Virginia ruled that trees and plants that create or threaten actual harm to adjoining property may be considered a nuisance, and their owner may be forced to cut back or remove them. Fancher v. Fagella, supra.
iv. “Hawaii Rule”
“[W]hen overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, [substantial] harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the ... neighbor may cause the cut-back to be done at the tree owner's expense.” Whitesell v. Houlton, 2 Haw.App. 365, 632 P.2d 1079 (Haw.Ct.App.1981) However, the injured landowner “may always, at his own expense, cut away only to his property line above and below the surface of the ground any part of the adjoining landowner’s tree or other plant life” that encroach upon the property. Id. (emphasis added)
------
According to this boot, California is following the "Restatement Rule":
http://books.google.com/books?id=Vu-WbiXbcvIC&pg=PA97&lpg=PA97&dq=ca+%22restatement+rule%22+%22virginia+rule%22+%22hawaii+rule%22+%22massachusetts+rule%22&source=web&ots=GSKxlPu3sv&sig=xMf_5dK0IlqUsApH1tjX7B5O98E&hl=en
From "Homeowner's Rights" (c), p
Massachusetts Rule: AL, CT, DC, FL, IL, IA, KY, MD, MA, NE, NJ, RI, VT
Restatement: CA, LA, MS, MO, NC
Hawaii: HI, IN, KS, MI, NM, NY, OH, OK, TN
Virginia: AZ, VA
I don't know about the remaining 21 states.
Hope this helps,
Robert
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
Posted by: Norm Lumpkin
Date: Mar. 10, 2008
I have a question. My neighbor has just planted queens palms right at the boundary of our front yard property. As these trees grow the radius of the trunk will grow into my property. Is he not violating my property lines? Thank you
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
Hi Norm,
I'm not a lawyer and I haven't seen any covenants, codes and restrictions (CCRs, found in many developments) for your area and don't know where you're writing from, so I have more questions than answers for you. (I don't know that we have queen palms in CA, so I'm going to guess you're in Florida.)
Most areas do not have a "setback" requirement for landscaping, but more likely they do have setback requirements for structures. For instance, you might not be allowed to build a spa or pool within 8' of the property line. Those type of requirements don't usually apply to bushes, plants and trees - normally you're allowed to landscape with living things right up to the property line.
Sounds like you are concerned about the future. You might first see if you have CC&Rs, and if so, whether or not this issue is addressed.
Is your home in a Home Owner's Association? If so, you might see if there are any other rules or laws in place about it.
Of course, you can always see an attorney. But that can be expensive and may not change anything if your neighbor is within his or her rights to plant.
Let me tell you something that may ease your concern: most of the time, assuming there's not overcrowding, having trees planted is viewed as a plus, even if they're not on your side of the fence. It's likely that those queen palms may improve your home's value.
Thanks for stopping by. If you learn more, please come back and tell us what you've discovered. This seems to be a very "hot topic".
Best,
Mary Pope-Handy
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
Posted by: Norman Lumpkin
Date: Mar. 10, 2008
Good Morning Again Mary,
I live about 10 miles south of Modesto. The 5 palm trees my neighbor planted are directly on the property line in our front yard. As I stated as the trees grow half the radius of the tree trunk will be on my property. I don't want 5 palm trees in my front yard. My question is, "Does my neighbor have the right to grow trees that will eventually be growing on my property"? Thank you
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
Posted by: Norman Lumpkin
Date: Mar. 10, 2008
OOps, sorry, no I don't live in an association
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
I have been getting questions about individual states and whether it's legal to trim branches that hang over onto the non-tree owner's side of the line.
I am sorry, but I do not know the law in Colorado or in other states. In CA, that would be legal to do. I just do not know in other places.
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
Posted by: nate
Date: May. 6, 2008
Hello, I live in clovis, californnia I am trying to see if I will be held liable for a pre-existing tree whos roots have grown under my neighbors garage, I have spoke with him and I am removing the tree in question as a sign o good faith, no arguements I have reason to believe that he wil seek damages in the future, I would like to know if the law is on his side or mine, or if it is up the education ans experience of a judge/jury.
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RE: Trees Near the Property Line:<BR>Who Pays to Trim in California?
Hi Nate,
You sound like a good neighbor. I honestly have no idea how this will turn out for you, but I have to think that a judge/jury would look favorably on your proactive approach to the problem.
Best of luck to you. I would truly appreciate it if you'd return in the future and tell us what happens.
Mary Pope-Handy
Los Gatos
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