Wednesday, December 21, 2005

WHEN TREES COME BETWEEN NEIGHBORS - The peculiar predicament of the “boundary tree”

"A fool does not see the same trees a wise man sees." Rick Hilles

Good Trees Good Neighbors Make?

You and your neighbor have a big Cypress tree growing on the boundary line between your two properties. The tree has been there since long before you moved in. Your neighbor said it was planted about 50 years ago by the man who originally subdivided the property, Old Mr. McPherson. It’s never given you any trouble over the years, but lately it’s begun to look a little scraggly. Small branches are dropping out of it and it looks like it could really use a haircut.

Something nasty and brown is oozing out of on your side too. Your arborist tells you the tree is senescent, which means older in tree years than Old Mr. McPherson must be in people years by now. He also says you might want to have it removed, because it really isn’t going to get better and it might even start dropping larger branches or fall over altogether right on your roof. “Notice how it’s leaning,” he says. Now that he mentions it you do and rush to call your neighbor to help pay for its removal.

Since the tree is on the boundary, you assume the neighbor will have to pay half the cost of its removal and planting some more suitable variety. But unexpectedly, he balks, pointing out that most of the tree’s trunk has grown on your side of the property. Besides, it’ll fall on your house, not his, so he doesn’t see why he should have to pay for it. Does he?

In California, the rule is that when two owners share a tree, both share the cost of its upkeep or liability for its lack of upkeep, in proportion to how much of the trunk is on whose side of the line, which is not always easy to determine. (If the trunk is wholly on one side, even if the tree leans or the branches hang over on the other side, the tree is said to belong to the owner of the property on which the trunk stands.) Neither owner may do anything to damage the other owner’s interest in the tree.

If there’s a dispute about who owns the tree, a survey may be the answer. See if the neighbor will share the cost. It’s always a good idea to know where your property line is in any event. A lot of our subdivisions were laid out before modern survey techniques became commonplace, and the old landmarks have been destroyed, sometimes cut down or paved over.

In this case, the tree is clearly a nuisance and poses a hazard. Since it is partly growing on the neighbor’s land, I would ask him to contribute to its removal. The fact that it’s leaning over your house and not his doesn’t shield him from any liability. In fact, if it falls and damages your property, he will be at least partially responsible. Point this out to him politely over a neighborly cup of tea or glass of Chardonnay, to make the cost more bearable.

Fruit of the Boundary Tree

Suppose your boundary tree is a nice big McIntosh Apple or Bartlett Pear? Or hung with bright persimmons? Assuming you share the trunk of the tree, the fruit hanging over each owner’s line would be the property of that owner. If the tree trunk is entirely on one property, however, it wouldn’t strictly be a boundary tree and the fruit would be the property of the owner on whose side the trunk is growing.

If the overhanging branches themselves become a problem, you would have the right, under common and California law, to trim the branches back to the property line. The question arises, what about the fruit? Surprisingly, you do NOT have the right to the fruit, even if the branches hang over your yard. Technically, you’d have to pay for the fruit, if you cut back the branches. At least I think you would. I have not found any reported California cases on this subject, such disputes being more the product of rival orchards in the 1800’s than neighbors of today.

So, it’s unlikely the neighbor will sue you over a few apples. But it’s better to keep on good relations with one’s neighbors. So ask permission first. You’ll probably get it and you can make apple pies for both.

If you can’t resolve these or other property related problem with a neighbor, consider going to mediation. The County has a low cost mediation service and many towns operate their own. A qualified arborist can give you an evaluation of the health of the tree and if all else fails, talk to an attorney experienced in tree and property matters.

Dotty E. LeMieux

Dotty E. LeMieux is an attorney specializing in tree and land use issues. You can reach her at coastlaw@earthlink.net You can also read her articles at www.landusenews.blogspot.com

Friday, October 21, 2005

The Nettlesome Nuisance

WHEN A NUISANCE IS MORE THAN A PAIN IN THE NECK


“Barking dogs and crowing hens often come to bad ends” Old saying


The Problem

Your neighbor’s son is starting a rock band in his garage. He’s put egg cartons on the ceiling and old blankets on the walls, to muffle the sound, but it’s still ear piercingly loud at 1 o’clock in the morning.

Another neighbor is fixing old cars in his driveway for fun and profit, causing unpleasant smells to waft through the air and gooey substances to puddle in the street, sometimes oozing into your well tended front yard.

And next door, the man with the prize winning azaleas is spraying untended irrigation water over the fence causing rivulets to undermine your own drought resistant garden.

These, along with barking dogs, tree roots surfacing in your yard, loud parties and other aggravations to your peace of mind, are classic nuisances.

What is a Nuisance?

Anything that interferes with your use and enjoyment of your property is called a nuisance. In legal speak: “ Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (California Civil Code, section 3479.)

Nuisances can be either public or private.

California law states: “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. Private nuisances affect only one property owner, and are the typical cases we see where one neighbor takes on another.” (Civil Code section 3480.) All other nuisances are private.

Public nuisances affect general public, by unreasonably interfering with the public health, safety, peace, or well being. Toxic waste, dangerous activities and the like are examples of public nuisances.

Some activities that look like nuisances may be permitted activity. The San Rafael Rock Quarry which blasts neighbors out of bed in the early hours has been the subject of much controversy and many lawsuits over the years. To the neighbors, it’s a nuisance and then some. In these cases, the issues revolve around whether the operation is in violation of its permits or whether circumstances have so change that the permitted activity is no longer a beneficial one.

But changed circumstances don’t always mean annoying activities are now nuisances. Because of the proliferation of residential development in farming areas, and the recognition of the importance of agriculture to the state economy, the Legislature has officially proclaimed that agricultural operations which were in existence prior to residential development cannot be considered a nuisance due to changed circumstances. (See California Civil Code section “Prior Agricultural Activity Not Nuisance.”)

It’s usually the garden variety nuisance that plagues the average neighborhood, barking dogs, loud motorcycles, debris from nearby trees.

What can you do?

After you’ve politely approached the neighbor and asked him to curb his son’s enthusiasm, or move his car repair activity to a more appropriate location, and the nuisance persists, what can a law abiding citizen do? Many towns have procedures for dealing with certain types of nuisances, for instance interference with views are addressed through local procedures in towns such as Belvedere, Tiburon and Corte Madera. Other towns have their own specific tree ordinances.

If none of these apply to your case, you might ask the neighbor to go to mediation. Marin County has a low cost mediation services and even specialists in the barking dog problem. Both parties have to be willing to take this route, however.

There may be local or state regulations that apply. Most jurisdictions have ordinances, prohibiting loud or incessant noises, especially late at night. In the case of the car repair activity, most towns forbid such work in residential areas, without a use permit and allowing motor oil and other substances to escape into the street and possibly the storm drains is definitely prohibited and can result in a hefty fine if not criminal prosecution.

If you are personally affected in more specific way than the general public, you may have a cause of action for a public nuisance. For instance, the oil that seeps onto your property causes specific damages. Otherwise, you can go the Town, County or other agency to abate the nuisance.

If mediation doesn’t work, and there is no recourse through a public agency, you should consult a land use attorney to find out what your best options are. Sometimes an attorney can help you negotiate with the neighbor involved. The attorney can also help you determine whether the nuisance is a permanent or continuing one. (A permanent nuisance is one that is complete at the time of its occurrence, and is governed by a three years statute of limitations. A continuing one is one that is ongoing or repeated and may be abated at any time.)

Before you resort to costly legal action, consider appealing to the neighbor’s interest in maintaining good relations in the neighborhood. You may be surprised that when the problem is brought to the offending party’s attention, it can be resolved amicably.

Dotty E. LeMieux. Dotty E. LeMieux practices tree, land use and environmental law in Marin County and may be reached at coastlaw@earthlink.net.

Thursday, August 18, 2005

TIMBER TRESPASS

The assault

For the past several years you’ve enjoyed the privacy and comfort of your large pine trees on the edges of your property. They keep your yard cool in summer and screen the neighbors’ pool.

Then one day you return from a hard day at work to find your beloved trees massacred. Their branches hacked to within an inch of their life, the trees are skeletal remains of themselves.

You think you can see the neighbors peeking around the corner of their newly exposed house, grinning slyly.

What has happened?

All too often neighbors have vastly different opinions about the trees that separate their lots. To you, the pines were a sheltering green zone, providing a sense of tranquility and home to birds. To the neighbors, they were messy nuisances that shaded their garden and dropped unsightly debris on their lawn. They may even have considered them a view obstruction or fire hazard.

One day, the neighbors had enough. Someone had told them they could trim on their side of the property line, so they hired the Chop and Drop Tree Co. to come over and do just that.

Unfortunately, Chop and Drop got carried away and started hacking on your side of the line. Your beautiful trees are now a mess.

Worse yet, your neighbors never even consulted with you. You would have agreed to a little reasonable thinning for their garden’s sake.

But now you are angry. What should you do?

What could have been amicably resolved between good neighbors has turned into an ugly feud. The neighbors have committed what’s known as “timber trespass” or “trespass cutting of amenity trees.”

The law

Contrary to what it sounds like, “Timber Trespass” isn’t when a member of Earth First takes up residence in an endangered redwood tree in the middle of an old growth forest. It’s any time someone crosses onto the property or air space of another, and causes damages to their trees.

If your neighbor goes on to your property and removes vegetation there, it’s a timber trespass. Trees have value, monetary and non-monetary. These can include aesthetic, architectural, energy conservation and wildlife habitat.. They provide shade, privacy and a sense of emotional well being to the people who tend them and appreciate their beauty and the natural setting they offer. The trees can also provide critical slope stability and erosion control.

To lose your tree can be a devastating loss.

That’s why the laws in California and many other states provide stiff penalties for the unlawful removal or damage of another’s trees. Iin most cases you can even recover two or even three times the actual loss, and even, in certain circumstances, emotional distress damages.

The law provides that for the intentional injury to “timber, trees, or underwood upon the land of another, or removal thereof,” the damages to be awarded are three times the actual value of the loss. Where the wrongful cutting is unintentional or negligent, “the measure of damages shall be twice the sum as would compensate for the actual detriment…” (California Civil Code section 3345: Wrongful Injuries to Timber, Trees or Underwood.)

In fact, courts have found that because of people’s special relationship to their trees, this is one of the unusual situations when you may be able to recover for emotional distress for a purely property damage claim. In an early case on this subject, the California Supreme Court stated that once you establish that a trespass or nuisance has occurred, “an occupant of land may recover damages for annoyance and discomfort that would naturally ensue therefrom." (Herzog v. Grosso (1953) 41 Cal.2d 219, 225) A more recent case stated it this way: “Mental distress caused by the nuisance created and maintained by the defendant is an element of loss of enjoyment.” (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 287-288, quoting Sturges v. Charles L. Harney, Inc. 165 Cal.App.2d 306, 323.)

The remedy

If this happens to you, make sure you document the loss immediately, contact a consulting arborist who can evaluate the monetary damages, and call your insurance company. It helps if you have both “before” and “after” photos to support your claim. Immediately photograph the damage and write down an accurate timeline of events. The arborist will use a number of factors in evaluating your loss, including species, size, health, location of the tree on your property and its importance for privacy, shade, wind screen or other values particular to your property.

A good land use attorney experienced in tree law can help you determine the best course of action.

If your neighbors have been complaining about your trees, it’s always best to try to work it out informally or through mediation before things escalate to a full bore timber war. It pays to keep track of your trees health, their effect on neighboring properties, how fast they are growing and other factors that can come between even the best of neighbors. In fact, courts have found that homeowners have a “duty to inspect” their trees and property. Ignorance is not an excuse.

In the case of mature trees on your land, an ounce of prevention can be worth a ton of cure.

Dotty E. LeMieux

Printed in the Marin Scope papers, August 15, 2005

Friday, August 12, 2005

Tree Law in the News

Below is an article hot off the presses, by Marin's own Beth Ashley, a wonderful reporter, columnist and activist. Notice just about everybody she talks to in the article is a woman. Yeah! Moi included. Yes, this is what I do for a living, along with the environmental law/action and campaign consulting. To me, it all goes together.

Note that the "consulting arborist" identifed as my husband, is Ray Moritz, and he's the one who advised Drake High School not to cut down that grand old Redwood tree to make way for the astroturf. My husband - A hero to students and trees alike!

Enjoy the read:

Beth Ashley: Power can be rooted in the oddest places

Beth Ashley

Marin Independent Journal 8/10/05

SUDDENLY, I have more power than I suspected.

Larkspur officials informed me recently that the homeowner four houses away in my Greenbrae neighborhood wants to cut down a palm tree in his yard. Would that be OK with me?

Well, duh. I thought anyone who owned a tree had an absolute right to cut it down.
Silly me.

It turns out many Marin towns and the county itself have rigid rules on trees and their fates. And people like you and me have power over certain trees in someone else's yard.

I can object to my neighbor's cutting down his palm because it is a "heritage tree," so large that it has a privileged life of its own.

Recently, when a landlord in a Mill Valley neighborhood wanted to cut down an old oak in his front yard, he had to inform the city first, and the city informed the neighbors, and several of them protested. They liked the tree and wanted it to stay.

A hearing was held, and - because the tree is certifiably sick and in danger of falling - permission to cut it was granted.

Attorney Dottie LeMieux, who specializes in land use and property rights, and who is married to a "consulting arborist," knows tree regulations like the back of her hand.

- Tiburon, she says, has the toughest tree ordinance in the county.

- Several towns protect some trees as heritage trees - so designated by their size and age and sometimes by species. An oak, for instance, is usually considered a treasure - hands off! Mill Valley protects oaks, madrones, redwoods or Douglas firs of a certain diameter. But according to city parks official Ron Misurrace, "It's OK to cut down a bay, pine or cypress, as long as it's on private property."

- Some trees, considered a nuisance, aren't protected at all. Most cities and the county would be delighted if you cut down a eucalyptus, and some towns - Corte Madera, for instance - forbid the planting of nuisance trees like eucalyptus, Monterey cypress, juniper, acacia and Lombardy poplar.

Trees can be the source of bitter neighbor-to-neighbor feuds. "A tree is part of a man's home," says county mediation services chief Barbara Kob, "and a man's home is his castle."

All kinds of issues arise: your tree is blocking my sunshine; the roots of your tree are buckling my sidewalk.

One of the biggest sources of neighbor disputes arises when one guy's tree blocks the other guy's view.

Tiburon, Belvedere, Sausalito and Corte Madera have view preservation ordinances - you had better not let your trees grow tall enough to cut off your neighbor's view of the bay, the bridges, the hills or, in Belvedere, even cut off his access to sunlight.

Ellie Bloch, a veteran mediator for the county, says disputes over views, next to divorces, are the most challenging to mediate.

"People covet their views and think the view is their right. But there are many perceptions of what is a view. We're dealing with people's feelings. It's hard to describe."

Bloch,who lives in the county area of Tiburon, says she trims her trees to accommodate her neighbor. "By law, I don't have to do it, but they asked me to do it, so I do. Many, many people do the same."

Others, however, end up in mediation or in court.

"Some people want privacy from a neighbor, so they plant trees for a sound barrier, a wind break, or to fence their property off from their neighbor's," Bloch says. "One neighbor might not mind, but when a new person moves in and wants more view, they often end up in a fight."

Tree disputes are often not about trees, LeMieux says; "they're about neighbors who don't like each other."

Sometimes neighbors do "awful things" to one another's trees, she says. "They'll put poison at the base of the tree, or cut down a tree because it was bothering them and then say it was a hazard."

Sometimes neighbors talk, but often resort to "self-help," she says.
LeMieux warns that the last thing you should do is to take matters into your own hands. If you do, lawsuits may await. People will sue if you trespass on their property (and sometimes win triple damages). They'll sue if you trim a tree that leans over your fence. Sometimes the courts even allow damages for "emotional distress" over modifications to their trees.

Trees: the new family pets!

LeMieux had a case in which neighbors squabbled over a line of trees close to the property line. "My clients loved these trees, which provided shade, beauty, privacy. But they came home one day and found their neighbors cutting them down. They called the police."

Accusations flew back and forth that were "way beyond trees," she says. The offenders "paid a fair amount" to settle the case.

Tree disputes are usually lightning rods for other issues, says Barri Bonapart, a tree law specialist in Sausalito. "There's usually some other offense that's bothering them - like, you did not invite them to your daughter's wedding."

Tree disputes between neighbors "are almost worse than family law," Bonapart says, "because in a divorce, at least, one of the parties moves out."

Some towns have tree committees that try to come up with solutions. If the problem is about a view, the tree owner may be required to "make a see-through window" in his trees. Some cities set up long-term monitoring situations, so the views are constantly preserved. Sometimes, when a tree has to be removed to accommodate new construction, cities will require planting a new tree.

Trees, according to the founder of Marin Releaf, a 15-year-old San Rafael-based organization, are essential to human health: they purify the air we breathe.

Sandra Sellinger and her volunteers are pushing for an agency that would take care of the street trees that were once planted curbside by cities but which now seem to fall on property owners to maintain.

Over the years, Marin Releaf has planted trees where trees were needed - in parks and school yards, at China Camp and at the Marinwood-St. Vincent's interchange.

Even when the trees aren't their own, some Marinites take their presence personally. When Dominican University cut down 42 eucalyptus trees - eucalyptus trees! - on Grand Avenue in 1999, the outcry was so great that the city fined the university and demanded that new trees be planted.

Last year, when officials at Sir Francis Drake High School planned to remove a 100-year-old redwood tree to renovate an athletic field, students raised such a ruckus the school board reversed itself.

Trees have been important in Marin for at least the last century. The venerable Outdoor Art Club in Mill Valley and the now-defunct San Rafael Improvement Club both were early planters and protectors of trees.

In the 1950s, a maiden lady named Georgia Wintringham made San Rafael trees her special bailiwick, ever on the lookout for sick trees and doing whatever she could to encourage tree planting.

How much do we value our trees?

Recently, Bonapart had a client who contended that a neighbor cut the roots of his 90-foot tree, damaging it so much it had to be removed. The case was settled for $40,000.

Wednesday, June 15, 2005

GRASSROOTS POLITICS FOR CITIZEN ENVIRONMENTAL ACTIONS

THE POLITICS OF LAW; THE LAW OF POLITICS

What You Need to Know When Developers Come to Call:

You have just learned that a developer has submitted plans for a 1200 unit development on the old dairy farm. You’re outraged that a neighborhood greenbelt will now be covered with Mc Mansions. You worry about traffic impacts and the fate of the historic oak trees that cover the property.

Is there anything you and your neighbors can do?

You might call your County Supervisor. You might write letters to the editor or chain yourself to a fence in front of the site. You might bring in the Ruckus Society to lead a protest march. Or hire a pit bull attorney to sue everyone in sight.

You might simply tear your hair out in frustration.

Or you could bring on board a seasoned land use lawyer who is also versed in grassroots political action and lobbying techniques. Someone who can draft an effective legal response to an Environmental Impact Report (EIR) and represent you and your neighbors before the Planning Commission. Someone who can also help your group organize, build support for the cause and let the local politicians know you mean business.

A Mutli-modal Approach to Environmental Problems:

You’ve heard the term multi-modal in the context of technology and transit planning. But it applies just as well in the community environmental arena. Let me explain.

Community groups shouldn’t have to reinvent the wheel every time a developer or big box retailer comes calling. A multi-modal approach using law and political action can provide you time proven techniques to help you win your environmental battles.

Over the years, I have learned techniques for working with neighborhoods and community groups beyond legal representation. My practice has grown as a result into three distinctive realms:

1) Public Interest Law: representing citizen and environmental groups in public hearings, reviewing and commenting on EIR’s and litigating environmental cases; advising clients in First Amendment petition rights and election law; drafting initiatives and referenda.

2) Campaign Consulting for Candidates and Issues: strategic campaign planning, reviewing issues and crafting a message for voters and ensuring the message is delivered effectively

3) Activist Training: providing the tools necessary for your group to influence public opinion, lobby elected officials and wage an effective campaign for your cause

In the context of a community environmental issue, these three realms all contribute to a successful outcome. Having someone who understands both the law and the politics involved early on in the process is crucial.

Using a multi-modal approach allows you to tackle the issues of strategic planning, coalition building and fundraising while addressing the fine legal points in the environmental review process. Lobbying officials and “speaking truth to power” are also crucial in waging a battle that will affect your community and quality of life.

Remember, an environmental legal battle IS a political campaign.

The Advantages of Multi-modal Environmental Action:

Using a multi-modal approach can avoid unnecessary litigation by involving an experienced land use attorney who is also skilled in campaign and lobbying techniques. In this way, you magnify your clout and make the decision-makers sit up and take notice of your cause. In preventing a planned doubling of San Quentin Prison, an ad hoc group deposited thousands of signatures on the desk of the President of the Board of Supervisors demanding the EIR be reopened for failure to properly notice the local community (a legal position).

The result was a withdrawal of County support, which caused the State to abandon its plans altogether (a political outcome). Using grassroots techniques to take the message to both the public and the decision-makers avoided costly litigation.

This approach also offers opportunity for collaboration between grassroots activists and legal professionals to strengthen the position of both. A successful lawsuit to stop local jail construction led to a successful campaign to preserve the land from future construction in Marin County.

Citizens used a lobbying and public relations campaign to piggyback on their legal arguments to derail piecemeal construction of cell phone towers in rural Mendocino County.

In McCloud, California, a successful lawsuit challenging the legality of a contract with the giant Nestle Corporation for sale of water rights dovetailed with Citizen action to keep the project in the public’s eyes and wage a strong grass roots campaign.

This office has been working with community groups, training activists and waging legal battles for more than 15 years. Many of the candidates I have helped elect have come from these environmental campaigns. When environmental and community activists run for office, the effects of this work are far reaching and very rewarding for all concernmed.


Dotty E. LeMieux

Dotty E. LeMieux practices public interest environmental, land use and election law in Mill Valley, California, along with advising candidates for elected office. She offers activist trainings for citizen groups and teaches “Practical Politics” through the College of Marin Community Education program. You may reach her at coastlaw@earthlink.net

Friday, June 10, 2005

EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT EASEMENTS

EASEMENTS ARE TRICKY BUSINESS FOR UNWARY PROPERTY OWNERS

Derived from the Old French aisement, ‘convenience or accommodation’

Don’t Block that Easement!

Often the first time an easement becomes an issue for a property owner is when he finds it blocked in some way. Have you always used the narrow driveway that runs alongside your neighbor’s property to get to and from your own home? It’s likely what you have is an easement over a portion of his property. Looked at your deed lately? Occasionally, the owner of the property over which the easement runs will encroach into it, sometimes in all innocence. If the easement isn’t regularly used, or only a portion of it is used, the property owner may think it has been abandoned or isn’t needed.

Most easements homeowners deal with have to do with getting into and out of landlocked property. Say you buy a piece of land on the side of a beautiful hill in somewhere like Nicasio, but there’s no access road to the property. How do you get to the land? Where do you build your road? These are questions you need answers to before planning your dream house. Besides the cost of building a hillside driveway, you will probably need to obtain an easement across the downhill neighbor’s property. This kind of easement is often created at the time of subdivision, but if you are buying land that is not part of an existing subdivision, there may not be an easement in place.

You need to find out if the neighbor will grant you as easement for ingress and egress and if so, what will it cost you?

Often easements are reserved from property carved out of a larger lot, to allow the original owner or those coming after him access to their land. Make sure you know if land you buy has an easement on it for back lot neighbors.

No one may unreasonably interfere with the purpose for which an easement has been created. That means you can’t put up a locked gate across the driveway your neighbor uses to access his home. Nor can you build a fence so far into the easement that it blocks the way or creates a hazard.

The question that faces courts when these disputes escalate into litigation is what is reasonable? Is it reasonable to put a fence two feet into the easement but not three? Is an easily opened gate across the drive ok, if it serves the function of keeping livestock in?
Often these disputes arise because no one knows exactly where the easement is located. Or it appears to have been abandoned because it’s rarely used or not used for its intended purpose. A new road may now provide access and the old easement may no longer be needed.

Is an Easement Forever?

Some easements are hard to get rid of. If you notice there’s one in your deed, and no one’s been using it for years, don’t stop there. If you have questions about whether it’s ok to block off a long overgrown roadway, or move your garden into the easement way, you better consult an attorney first. If the neighbor objects, you could find yourself in court while a judge and jury sort out the property issues.

Even if the easement hasn’t been used for years, it doesn’t automatically revert to your use. Even if they start using it for another purpose altogether, so long as that purpose is not result in “a physical change that permanently and materially prevented [the easement holder] from using the easement or made his use of the easement severely burdensome….” The easement will not be extinguished. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754.) In fact, even after twenty years of disuse, the easement holder may be able to reclaim the easement by filing a “late notice of intent to preserve easement” pursuant to California Civil Code section 887.070.

Overburdening the Easement

An easement may have been created for one use and now be used for another. For instance, what was once a wagon trail used to alfalfa to a head of cattle that is now long gone may now see several hundred car trips per day as new owners of the now subdivided land pass through your property.

Courts will evaluate the issue of whether a change in use of an easement is consistent with the purpose for which it was created. Does the use by the subdivision homeowners comport with the earlier use by the farmer to carry food to his cattle? If the change in use is one of degree instead of kind, the easement will be allowed to continue.

This change “includes normal future development within the scope of the basic purpose [citations], but not an abnormal development, one which actually increases the burden …. (Wall v. Rudolph (1961) 198 Cal.App.2d 684.) In the case of a farm being subdivided, the court will look to the reasonableness and forseeability of the new use.

If the new owners continue to use the easement for long enough, they may acquire a right to continue using it through prescription, or it may even be seen as a public right of way.

Conservation Easements

Often jurisdictions require conservation easements when granting a conditional use permit for agricultural land. These can either be public or private easements. Lucas Film property was created out of historic dairy ranches and contains many thousands of acres of agricultural land preserved in private easements as well as miles of public access trails as part of its deal with the county for development on the north side of Lucas Valley Road, just west of Big Rock.

The Marin Agricultural land Trust acquires easements from West Marin farmers to ensure the land stays in agriculture. To date more than 32,000 acres or one quarter of all Marin’s agricultural land has been protected in this way.

The Marin County Open Space District holds easements more than another 2500 acres.

If you have questions about an easement of your own that your deed description or parcel map can’t answer, consider consulting a land use or real estate attorney for help unraveling the problem.

Dotty E. LeMieux is a land use, tree and property law attorney in Mill Valley and can be reached at coastlaw@earthlink.net. A version of this story appeared in the Marinscope newspapers in Marin County, California.

Wednesday, May 25, 2005

PROPERTY LINES

SOMETIMES A FENCE IS JUST A FENCE

I once had a client who had lived in his home for more than 20 years. One day he awoke to find the side neighbor building a fence ten feet over onto his property!

“What are you doing?” shouted my client, let’s call him Sam. “Well, Sam,” said the neighbor, “I’m putting a fence on the property line. I had a survey done and guess what; you’re ten feet over on my side of the line.” Sure enough there were surveyor’s stakes in the ground marking the line of the new fence.

Sam was outraged, and after jumping up and down a few times, called me.

Sam showed me his parcel map, and pointed indignantly to where the neighbor had put the fence. On his side of the line. Or so he insisted.

Sam was wrong. Why?

Sam made the simple mistake many homeowners make – he relied on a long standing fenceline along the side of his yard, one put up some 30 years before he bought the property. His realtor and the seller both assumed the fenceline was the property line. So did the former owner of the property beside him. Sam pointed to his deed and the not very accurate parcel map from the County Recorder’s office, the one that was created in nineteen ought eight when the land was first subdivided, as further evidence that his property was where he thought it was. What stumped him was my pointing out that nowhere on that parcel map was a fenceline depicted. Nothing, in other words, confirmed the old fence was on the property line.

In the nearly 100 years between the creation of the subdivision and the present time, uses changed, fences shifted, shrubbery grew and people laid out boundaries based on someone else’s faded memories.

Is Sam plumb out of luck? Well, that depends. Here are some ways Sam may yet get to keep the property he’s considered his all these years.

AGREED BOUNDARIES

Sam may have an agreed boundary line he can point to for his claim that the ten feet are rightfully his.

An agreed boundary is one agreed upon in years past to settle a difference or dispute over the true location of the property line. If there is an existing fence along what Sam thinks is the property line, it may that the previous neighbors had this same dispute years ago, and agreed that the boundary line would be where Sam thinks it is

He would need to show some past uncertainty as to where the line was and an agreement between the (then) owners of both sides that the fence was to be used as the property line. Sam wins if he can convince a court that this is the case.

If indeed the fence has existed and been used for some fifty years or more as the property line, that fact in itself may be enough evidence to show the agreement needed to prove the case.

Sam may need to track down previous owners, or their heirs, to make his case in court.

ADVERSE POSSESSION

If Sam can show he has used the property as if it were his own in an “open and notorious” manner, and that he has have paid the property taxes on it continuously for five years, he may be able to claim under adverse possession.

The payment of property taxes is the tricky part here. Chances are, if the neighbor’s survey is actually correct (and Sam should certainly have his own done, just to be sure), then it’s not likely he’s been paying taxes on the disputed portion.

However, if he can show everything but payment of the property taxes, he may have a good argument that he has acquired an easement over that portion of the property.

LOT LINE ADJUSTMENT

Does Sam’s neighbor really need the extra few feet? Or would he rather have an extra few bucks and give Sam a lot line adjustment. A lot line adjustment is a modification of a boundary line between two or more legal parcels. Sam will need to apply for this procedure through his local Planning Department, pay a fee and have a new legal description prepared. He also needs his neighbor’s written agreement to present his application.

Sam may also get his neighbor to let him use the property, or split the difference to avoid a protracted legal battle. Sam could obtain a “license” for use from the neighbor for this purpose.

If this happens to you, talk to your neighbor first. Find out what his needs are; then, if you can’t work it out amicably between you, a good real property attorney can advise you of your options.

Dotty E. LeMieux

Dotty E. LeMieux practices tree, neighbor, boundary and easement law in Marin County and can be reached at coastlaw@earthlink.net. (A version of this story first appeared in the Marin Scope Newspapers)

Monday, May 16, 2005

SELF HELP - A TRAP FOR THE UNWARY

TREES AND THE LAW: NEIGHBORS BEWARE!

Imagine you wake up one morning to find the neighbor’s tree has moved closer to your house. No, it didn’t get up and walk over the property line, but that limb you’ve been concerned about has sagged in the night, and now looks really menacing as it looms over your rooftop.

Is it ok to take a chain saw to it before it falls on your house?

The answer is not as simple as you might think.

Evolving Law

The California law on this issue has evolved over the years as cases interpret the statutes in place. Early common law granted a landowner absolute right over his property to the center of the earth and the sky. However, the advent of airplanes had a tempering effect on that idea. Similarly, early case law dealing with trees suggested that you had an absolute right to remove limbs from your neighbor’s tree if they encroached on your land.

Later cases clarified the issue to apply a rule of reasonableness. Does the overhanging limb poses a threat to your property? If so, you must consider the damage your actions will have on the tree itself. The long and short of it is that you may cut the overhanging limb (or even trim back encroaching tree roots) but you must do so in a way that does not damage the underlying structural integrity of the tree.

The tree owner is ultimately responsible for damage caused by his tree if he has reason to know it is a hazard. And don’t think ignorance is bliss. A property owner has a duty of care to maintain his property so as not to create a nuisance for others. If you have put your neighbor on notice that the tree poses a danger (and it may take the town arborist or a private tree service to evaluate the tree and issue a report), and he takes no action and the limb falls, he is responsible for the damage caused.

Even without an arborist’s report, the property owner is supposed to exercise reasonable diligence in the maintenance of his trees so they don’t become nuisances to others. What this reasonable diligence consists of is the stuff of all these court cases we’ve been discussing. In California, there really is no “Act of God” defense.

Don't Litigate - Mediate

Before you hire your own expert, however, try talking with your neighbor about your concerns. Perhaps he is unaware of the danger his tree poses, or hasn’t noticed the messy debris it’s been dropping all over your nice lawn, and he’ll agree to take better care of it. Maybe you and he can share the cost of the upkeep. If the tree is on the boundary line, that is, part of the trunk grows on either side of the property line, you may be jointly responsible for its upkeep.

You might also contact a local mediation service or consult with your city or County for local ordinances that might help you get some relief. Many cities have codes protecting certain species of trees as “Heritage” trees. These vary widely; some towns consider only the size of the tree. Others specify which trees are to be protected. For those trees, a permit to remove the tree is required unless an emergency is declared by a public official.

In Oakland, protected trees are “On any property, Quercus agrifolia (California or Coast Live Oak) measuring four inches dbh (diameter at breast height (four feet) or larger, and any other tree measuring nine inches dbh or larger except Eucalyptus and Pinus radiata (Monterey Pine).” (Oakland Municipal Code section 12.36.020.) Strict permitting requirements exist for removing any of these protected trees and even the non-protected trees are regulated in development situations or on City owned property.

Other towns permit emergency cutting without official permission, but be sure you check first. If it’s a problem with solar access or views, each community has its own set of rules governing those issues as well.

Crossing the Line

One thing you must never do is go onto the neighbor’s property without permission to take action on a tree problem. That’s more than self-help, it’s timber trespass and you may well find yourself liable for triple the cost of the damage to the trees. If the dispute is over views, shade or annoying leaves on the ground, your position will particularly untenable. Because people have a special relationship with their trees, the courts sometimes even allow for the recovery of emotional distress, if the damage done was egregious. If you clear cut your neighbor’s oak forest to create a view for yourself, don’t look for sympathy from a jury.

Trees can pose a thorny thicket or a shady shelter, depending on your vantage point. Remember the poet’s adage: “Good fences make good neighbors.” The same can hold for trees.

Dotty E. LeMieux

Dotty E. LeMieux practices tree and other aspects of property, environmental and neighbor law in the Bay Area, and can be reached for consultation at coastlaw@earthlink.net.

Wednesday, May 11, 2005

Land Use News Launch

Welcome to the Land Use News!

This is an informative site for news about land use issues for attorneys and lay people alike.

I will post articles I write and publish elsewhere and info on interesting cases.

If you'd like to post, feel free to add to Comments.

Here is the first article, initially published in the Marin Scope Newspapers:

WHEN YOU CAN'T SEE THE FOREST FOR THE TREES - Literally

"Every body does not see alike.... The tree which moves some to tears of joy
is in the Eyes of others only a Green thing that stands in the way." (from
The Complete Writings of William Blake (1957) p. 793.)



Homeowners have a love-hate relationship with trees.

We all appreciate the sheltering arms of our own well tended amenity trees; we nurture Heritage Oaks and cherish our prized Japanese Maple.

But what do we do when our neighbor's trees become a nuisance, blocking views of
distant hills, ocean or forests?

Trees are living organisms. They can grow to be unwieldy straggly things that drop
their branches all over, threaten to fall on unsuspecting bystanders, or plop their
bulk squarely in your viewshed.

If you are like many Bay Area homeowners graced with hillside or coastal living,
you probably know just what I'm talking about. Your view of the ocean, never more
than a precious triangle to begin with, may now all but obscured by some runaway
Eucalyptus trees two streets over.

Your view of the peak of Mt. Tamalpais is shrinking behind scruffy delinquent pines
on the lower slopes. You bought your Lake Tahoe home for the view of the silvery
water edged with softening pine trees along the shore, but now that view has been
commandeered by renegade Cypress who have no business in the neighborhood in the
first place.

What's a law-abiding homeowner to do? Here are a few potential remedies for the
most common view versus tree problems.

Can the Trees be Considered a "Spite Fence?"

California law recognizes that a "fence or other structure in the nature of
a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained
for the purpose of annoying the owner or occupant of adjoining property is a private
nuisance." (From California Civil Code Section 841.4 - Maliciously Erected
Fences)

Courts have decided that a row of trees if planted for the purpose of annoying the
neighbors can be considered a structure for purposes of enforcing this statute.
Such a structure is commonly known as a "spite fence."

Spite fences reached a height of notoriety when in the 1870's, Charles Crocker wanted
to buy a whole city block on Nob Hill to build his mansion. One neighbor refused
to sell. Crocker simply bought all the land around the holdout landowner and
built a 40 feet high fence, surrounding the property. No laws protected the hapless
property owner in those days, and he eventually caved in and sold to Crocker.

In a recent case in the town of Yreka, the Third District Court of Appeal said yes,
a row of trees planted to block a neighbor's view could be seen as a spite fence
and be deemed illegal. (See Wilson v. Handley (2002) 97 Cal.App.3d 1301.)

If your dispute gets to a court, the intent of the neighbor planting the trees becomes an issue. If a court determines that the purpose of the planting is to mark the boundary line and to annoy the neighbors, then the court could reasonably conclude that the trees "unnecessarily" exceed 10 feet in height.

Is there a view Ordinance in Your Town?

Many towns have ordinances setting forth standards for maintaining views. There
is no general California law about views. Some towns cherish certain trees such
as Redwoods and have strict guidelines for their removal or even trimming, while
others see them as nuisances, interfering with neighbors' views of Bay or hillsides.

In Marin County, the Town of Tiburon leads the way with the most protective ordinance.

It provides in part:

"The Town recognizes that certain types of trees, because of potential breakage
and fire hazards, or their potential for creating view blockage due to rapid growth
and tall height at maturity, should be prohibited from being planted without special
permission. These trees are referred to as 'undesirable trees.'"


You need to check with your town planning department to see what the rules are.
They are often posted on line. In those cases where view ordinances exist, there
is often a "tree committee" who you can appeal to; don't forget that many
towns and counties have mediation boards whose services are available for a nominal
fee, before you get into a full bore hearing, hiring attorneys and ending years
of peaceful coexistence with your neighbors.

Covenants, Conditions and Restrictions

Are you in a planned development with a set of covenants, conditions and restrictions
that control what homeowners can and can't do with their trees in terms of obstructing
neighbors' views? If so, you may be able to get your neighbor to trim his trees
to restore your lost view. Check with your homeowners' association to see what the
process is in your particular development.

By consulting skilled arborists, you can often set up a plan for "windowing"
the offending trees, so that the neighbor keeps his privacy and shade, while you
get your view back. If no ordinance or cc&r's cover your situation, offer to
pay for professional trimming to restore your view. Even if you do have an ordinance
in play, consider working cooperatively with the neighbor first, before resorting
to hearings or the courts. The cost will be small to maintain cordial relations
and enjoy your view at the same time. Invite the neighbor over to enjoy the view
with you over a glass of wine or cup of coffee as a thank you.

copyright Dotty E. LeMieux

Dotty E. LeMieux practices tree, neighbor, boundary and easement law in Marin County, California, and can be reached at coastlaw@earthlink.net.