This is the second episode in our new video series dramatizing encroachments.
The prior video introduced the concept of an encroachment as an improvement on real estate extending onto real estate belonging to another without their consent.
Unauthorized interference
An encroachment is an improvement on real estate, such as a building, fence, driveway or tree, which extends onto real estate belonging to another person without their consent.
Encroachment is closely related to trespass, nuisance and boundary disputes. All involve an interference with another person’s property rights.
Any encroachment qualifies as a nuisance, be it a permanent or continuing nuisance, since nuisance is broadly defined as any obstruction of another’s use and enjoyment of their real estate.
An encroachment is also a trespass when it actually rests on the ground of the neighbor’s property.
However, the names used for an interference are unimportant. One way or another, an owner is entitled to recover for an unauthorized interference with their property rights.
Once an encroachment has been discovered, the remedies available to the owner include:
- an injunction ordering the removal of the encroaching structure; or
- money losses for the diminished value of the property.
Tree encroachments
Trees with trunks which are planted on one side of a boundary line belong solely to the owner of the property on which the trunks grow. [Calif. Civil Code §833]
A solely-owned tree encroaches on a neighboring property when its branches or roots reach past the boundary line, sometimes called the contiguous line or common property line with the adjacent property.
A property owner confronted with encroaching branches and roots from a neighbor’s tree has three potential remedies:
- recover their money losses from the neighbor [Bonde Bishop (1952) 112 CA2d 1];
- use self-help to eliminate the encroachment; or
- obtain a mandatory injunction ordering the neighbor to remove the encroachment.
The remedy available depends on the extent of the encroachment.
An encroachment may be either:
- a permanent encroachment; or
- a continuous encroachment. [Tracy Ferrera (1956) 144 CA2d 827]
Physical damage caused to the neighbor’s property by an encroaching tree is considered a permanent encroachment. The neighbor may recover money losses from the adjoining property owner for the cost of repairing the physical damage to their property caused by the encroaching tree. [Bonde, supra]
When an encroachment can be abated (discontinued), it is considered a continuous encroachment. For example, a tree that does not cause physical damage, but only encroaches on a neighbor’s property by its overhanging branches or invading roots, is a continuous encroachment.
A neighbor subjected to a continuous tree encroachment may resort to self-help by cutting the offending branches and roots back to the property line. [Grandona v. Lovdal (1886) 70 C 161]
A neighbor who cuts off overhanging branches from an encroaching tree may keep or discard any firewood or fruit from the overhanging branches. [Grandona, supra]
However, a neighbor may not cut the encroaching branches or roots beyond the boundary line, kill the tree or enter the adjoining owner’s property without the owner’s permission. [Fick v. Nilson (1950) 98 CA2d 683]
Another type of continuous encroachment is a nuisance. A nuisance is any condition which prevents a neighbor’s free use or enjoyment of their property or is injurious to their health. [CC §3479; see Chapter 12]
The mandatory injunction remedy to remove the encroaching branches or roots is only available when the encroachment constitutes a nuisance, such as when tree roots deplete the nutrients in the soil of a neighboring property. [Bonde, supra; Crance v. Hems (1936) 17 CA2d 450]
