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.