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

3 comments:

Anonymous said...

You say "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", but the 2006 edition of Nolo's _Neighbor Law_ says that in California the tree is %50 your neighbor's, even if only a little bit of the trunk is on his property. If the tree was originally only on your property, then the trunk grew to where it was also on your neighbor's property, your neighbor becomes co-owner.

So I'm a little confused here--proportional, or 50%?

Curious (and yes, I do have a tree problem),
Tina

Jo-Ann Macdonald said...

I cut a scrub cedar tree down, which my neighbours are now taking me to small claims court. It appears that the tree trunk is on the property line, although it is difficult to ascertain because the survey stake is 10 ft or so from the shoreline and intersects the shoreline on an angle. Visually the tree was entirely on my side of the property line, growing out of the bank of the lake which is exposed when they lower the lake level and it curved up over my dock. A few years ago, I trimmed up the bottom branches so that I could walk on the dock. They did not take issue at that time. Because I was putting a new dock in and feared that it would eventually fall onto the dock and cause damage, I cut it down. Any advice to help me defend myself would be most appreciated. Thahks.

Anthony P. said...

Dottie: I have searched and searched and have not found any law in California (statutory or otherwise) that states that fruit on trespassing branches remains in the ownership of the owner of the land where the tree trunk is. I see vague references to "The rule of thumb is" and statements that "The law is unclear" but no citations, no authority. What about when the tree is growing over public property? A Park wall? Seems fair game under common sense ( which the aw isnot always). Wonder if there is an actual source for the statement - Thanks!