A common assumption is that homeowners
have an absolute right to cut offending branches or roots that encroach
onto their property.
New California Tree Law
by: Randall S. Stamen
Many people are not aware that in
1994, California tree law changed drastically. A California Court ruled
that a neighbor no longer has the absolute right to cut encroaching
roots and branches back to stubs ending at his or her property line. The
health of a tree must be taken into account.
The Court made its finding in a case
entitled BOOSKA v. PATEL. A man named Booska owned a 30 to 40 year old
Monterey pine. The roots of the tree grew into property owned by a man
named Patel. There is a question as to whether the Monterey pine's roots
were damaging Patel's walkways. Patel hired a contractor to dig a 3 foot
deep trench between his yard and Booska's property to sever the roots of
the Monterey pine.
After the trenching Booska filed a
lawsuit against Patel for injuries to the tree and for the creation of a
nuisance. (Apparently, the only reason that the contractor who severed
the Monterey pine's roots was not sued was that he went bankrupt.)
Booska alleged that because the Monterey pine's roots were severed the
tree was unsafe and unhealthy. Booska's allegations were supported by
the testimony of an arborist. Patel defended his actions by arguing that
a landowner has the right to prune encroaching roots and branches back
to his or her property line anyway he or she desires. Patel cited
several California cases to support his position. The cases he cited are
cases which California attorneys have depended on for years. The Court
analyzed Patel's argument and the cases he cited and concluded,
"whatever rights Patel has in the management of his own land, those
rights are tempered by his duty to act reasonably."
Booska v. Patel is significant in that
it generated new California case law which requires neighbors to act
reasonably when pruning encroaching roots and branches. A neighbor no
longer has the absolute right to cut encroaching roots and branches back
to stubs ending at his or her property line. The health of the tree must
be taken into account.
Responsible neighbors and green
industry professionals who wish to stay out of costly litigation should
keep Booska v. Patel in mind when pruning encroaching roots and
branches.
When Trees Topple: Rights and
Liabilities
San Francisco Chronicle, December 20,
1995
By
Barri Kaplan Bonapart;
Bonopart & Associates
What has been the No. 1 cause of
death, injury and property damage from this year's bad storms? Car
accidents? Floods? Electrocution? No. The answer is found right in our
back yards. It's falling trees.
On December 12, two Northern
California women were killed while sleeping when trees crashed through
their roofs, and a man died when a tree hit his car. On the same day,
dozens of others were injured and scores of houses and cars were smashed
by falling trees.
Is there anything that you can do
before the next storm to protect you and your neighbors? And what can
you do if you are injured or your property is damaged by a neighbor's
tree?
First, identify the problem. Certain
trees, because of their shallow root structure and top-heavy growth, are
more likely to be hazardous. These include certain types of eucalyptus,
Monterey pine, acacia, Monterey cypress, Douglas fir and bay. Even more
stable varieties of trees can become hazardous due to improper pruning.
Topping a tree (cutting the top off, usually for increased light or
view) can create a structurally unsound tree. Lollipopping (cutting the
lower branches and leaving a tuft of growth at the top) and lion-tailing
(trimming the inner branches to leave growth on the ends) can also
increase the risk.
If you think a tree on your or your
neighbor's property poses a threat, have a certified arborist or urban
forester inspect the tree.
If an expert confirms that a tree on
your property poses a hazard, you should trim it or cut it down. If the
tree belongs to a neighbor, there are several ways to approach the
problem.
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Talk first. Do not assume that your
neighbor is aware of the dangerous condition. Talk to your neighbor
and explain the situation. Once informed, the neighbor may be willing
to pay for some or all of the expense involved of eliminating the
hazard.
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Put it in writing. If the neighbor
is not willing to take corrective action, write a letter explaining
your concern and enclose a copy of the arborist's report. That way the
neighbor is on notice that he or she will be held responsible if you
or your property is harmed.
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Get help. Next, notify your local
government. Many cities will step in to correct or make the owner
correct dangerous conditions. Some cities will remove the hazard and
bill the owner if the owner refuses to take responsibility.
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Do it yourself? Legally you can cut
off offending limbs up to the property line as long as you do not cut
down or destroy the tree.
However taking matters into your own
hands is risky. If you cut branches that are on the neighbor's property
or cut in such a way that mortally wounds the tree, you could be sued or
arrested for trespass. You could also be subject to liability for tens
of thousands of dollars for wrongfully cutting the tree.
If you are only asking for
compensation for loss of use and enjoyment (for example, because you can
no longer go into the back yard for fear of injury), you can sue in
small claims court without a lawyer for up to $5,000. If you want the
tree trimmed or removed you will have to file in Superior Court.
Although you can represent yourself, it is not a user-friendly process
to most lay people. A lawyer experienced in tree and neighbor law can be
an asset.
Going to court should be a measure of
last resort because it can be expensive and time consuming and can
create long-lasting animosity between neighbors.
What can you do if your neighbor's
tree has already come crashing down onto your property?
-
Insurance. Notify your homeowners'
insurance carrier. Most policies provide coverage for damage caused
from falling trees. If you are the tree owner, your policy may also
cover damage to your neighbors, even if the damage was caused by your
carelessness. If you do not feel you have been adequately compensated
for your loss, do not sign a release or any document in which you give
up your right to bring legal action.
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Litigation. If you believe you have
not fully been compensated from insurance proceeds you may want to
pursue a lawsuit. You are entitled to compensation for the cost to
repair and clean up the property. Get written estimates for all of the
work required. If, for some reason, the property cannot be repaired,
you are entitled to collect the difference in your property value
before and after the damage, as determined by a real estate appraiser.
If you or family members suffer
injuries from a neighbor's tree, you are entitled to be reimbursed for
medical bills (even those already covered by insurance) and lost wages.
In some cases, you may be entitled to compensation for emotional
distress. If you can demonstrate that the neighbor showed a conscious
disregard for your rights or safety, you may be entitled to punitive
damages. For example, if you pointed out the dangerous condition, and
the neighbor refused to act, the court can award additional damages
aimed at punishing your neighbor for his or her failure to take
corrective action.
You may prevail in court if you can
show: 1) the tree that caused damage belongs to your neighbor, 2) your
neighbor knew or should have known of the hazard and did nothing to
prevent it, and 3) the tree damaged your property or injured you. You
also have to show the value of the damage or injury.
Although it may cost several hundred
dollars to stabilize or remove a hazardous tree, it may well be worth it
to avoid the potential problems.
