Tree Disputes with Neighbors

Tree Disputes with Neighbors

Ken DeLeon and Michael RepkaNovember 8, 2013
Palo Alto Daily Post


A speaker at a conference for real estate lawyers once referred to “Real Estate Agent Law.”  As the crowd looked on with confusion, the speaker explained the term to mean a body of laws regularly cited by real estate agents, but which are clearly wrong.  These “laws” can often be traced back to either old laws that have changed years ago, or something an agent thinks he or she recalls from a manager they once knew.  Irrespective of the source of error, this has created a lot of trouble for the agent’s clients over the years.

Today, a commonly cited, but incorrect, rule relates to tree roots and branches that extend over the property line from a neighboring property.  California law formerly provided that an adjacent property owner, whose property was damaged by encroaching roots and branches, may cut those branches or roots at the property line so long as the property owner does not enter onto the neighbor's property.  However, that law was substantially changed by Booska v. Patel in 1994.  Now, the adjacent property must take into consideration the health of the tree and act reasonably.  In other words, property owners may be opening themself up to liability if they aggressively cut a tree’s roots and branches at the property line. 

In Booska the subject tree was very large, its trunk entirely on one property with its roots extended under a fence onto the adjacent property. The adjacent property owner cut all of the roots at the property line to a depth of three feet.  The homeowner then removed the entire tree, claiming the adjacent property owner’s severance of the tree’s roots made it unsafe and a nuisance to keep the tree.  Relying upon pre-1994 case law, the Defendant (adjacent property owner) claimed he had an absolute right to remove any encroaching roots or branches irrespective of the effect on the tree’s owner. The court disagreed, stating that no one "is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result," and that the proper test to be applied to the liability of the defendant is "whether in the management of his property he has acted as a reasonable [person] in view of the probability of injury to others." 

After Booska, we are now left with little clarity as to how a property owner may handle the removal of encroaching limbs and roots from a neighbor’s tree.  Most real estate attorneys agree that property owners may still cut branches and roots at the property line without the neighbor’s permission so long as there is no unreasonable interference with the tree’s health or the tree owner’s rights.  Unfortunately, inconsistent interpretations of what is “reasonable” interference in light of specific circumstances can lead to disputes.  Thus, property owners may benefit from coming to an agreement with their neighbors before undertaking the trimming of encroaching tree limbs and/or roots.  Additionally, the tree owner should consult with an arborist and obtain a written opinion stating that the proposed work will not threaten the health of the tree.

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