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.