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2007-05-03 16:44:00

Out on a Limb with Neighbors Over the Fate of a Towering Tree

"The tree which moves some to tears of joy is in the eyes of others only a green thing that stands in the way." -- William Blake, 1799, The Letters

Two neighbors can feel very differently about the same tree. A tree that one property owner considers an asset may be a nuisance to his neighbor because of a blocked view, overhanging branches or invasive roots. Property owners often call attorneys for information about their legal rights and responsibilities when dealing with these issues.

Before advising clients, it is important that the attorney know where the tree trunk is located. If the tree trunk is on the property line, it is known as a "line" tree in California. Both property owners own line trees. Neither owner has the right to cut down a line tree or to remove any portion of a line tree extending onto his land without his neighbor's consent, in California and other states, even if the tree is causing damage.

If the tree trunk is not on a boundary line, the tree belongs to the person owning the land where the tree trunk is located, even if the branches and/or roots encroach onto his neighbor's land.

In determining each neighbor's rights and obligations, one should remember the basic rule of California law that each person must avoid harming others. This means each neighbor should act to avoid harming his neighbor.

A tree owner must maintain his trees to avoid injury to his neighbor's property. Under some circumstances a tree owner can be held liable for damage caused by falling branches and/or invasive roots.

A neighbor damaged by an encroaching tree can use self-help or court assistance. The unhappy neighbor can remove encroaching portions of a tree causing damage if removal is reasonable under the circumstances. To avoid liability, the tree trimmer should consider whether there are less drastic measures he could take to avoid the damage to his property, his neighbor's property, the tree, and his neighbor's tree. The neighbor can cut back the tree only to the boundary line.

A person who willfully and maliciously removes a tree without the legal right to do so can be held liable for treble damages. Furthermore, unless given permission or a court order, a person should not enter onto his neighbor's land to trim or remove an offending plant. If the unhappy neighbor doesn't want to remove the encroaching portions of the tree himself, he can also file an action to recover damages caused by the tree and/or to seek injunctive relief (i.e. a court order requiring his neighbor to take some action regarding his tree.)

A neighbor's tree cannot generally be removed because it blocks a view. In California we do not have "view easements" unless specifically granted. View easements, if they exist, are generally established through recorded easements, covenants, conditions, and restrictions.

(Jamie Sternberg is a partner with Kimball, Tirey, and St. John and a principal in the firm's Civil Real Estate Practice Group. The law firm specializes in real estate law and represents clients throughout California. 800-338-6039.)

The above discussion is general in nature and should not be construed as individualized legal advice. Readers are cautioned to seek individualized legal assistance based on a detailed analysis of their particular facts and circumstances.

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