This article addresses the legal aspects of trees as real estate and focuses on government-owned trees.
Maintenance and liability
A tree stands in the frontage area of a public right of way between a property owner’s parcel of real estate and the curb of the street.
The property owner believes he owns everything in front of his house up to the street curb and has unlimited free use and enjoyment of all the land between his home and the street curb.
The owner considers the tree unsightly and removes it.
The city’s Parks and Recreation Commission discovers the tree has been removed and fines the property owner for violating the city’s tree policy.
Can the city control the planting, removal and maintenance of trees located in the area between the street curb and the property line?
Yes! The land from the owner’s front property line to the middle of the street belongs to the city.
The front property line divides an owner’s parcel of real estate from the city’s right of way. The owner and the city are, in this sense, adjoining property owners.
The city’s right of way includes:
- the street or highway (usually surfaced with asphalt);
- the curb and gutter;
- the sidewalk (usually made of concrete) which may be adjacent to the property line or along the street curb; and
- street-side plots of soil or a grassy area commonly used as space for government trees or substitutes.
A property owner does not own the trees growing in the city’s right of way which typically extend 13 to 15 feet from the curb to the owner’s front property line.
Although the property owner typically maintains grass on the areas between the curb and his property line, he may not remove the trees located in the right-of-way area without city permission. Thus, the property owner must deal with the trees as the property of another owner, even though the trees grow in front of his parcel of real estate.
City-owned trees potentially pose two main problems for a property owner:
- maintenance, modification or removal of the tree; and
- damage from the tree to the owner’s property or to users of the owner’s property.
Maintenance of city-owned trees
A city may adopt a tree policy as authorized by the state legislature. However, a city is not required to implement and use the statutory tree policy. If the city adopts the state’s tree policy, the city cannot apply provisions from any other policy. [Calif. Streets and Highways Code §22002]
A property owner must comply with city ordinances before he removes or modifies trees growing in the city’s right of way.
However, a city’s charter will control if the charter and the statutory tree policy conflict.
Under state guidelines, the city can set up a board of one or more persons and call it the Tree Department, the City Parks and Recreation Commission or any similar name the it desires. This board will oversee the maintenance, planting, removal and care of trees, parks, shrubs and vegetation within the city. [Str & H C §22008]
The board can create and enforce ordinances that comply with state guidelines for trees growing on city-owned property. [Str & H C §22031]
The city may impose a penalty for the illegal removal of its trees.
If a property owner wants a city-owned tree removed, he must comply with the city’s ordinances controlling those trees. For example, a city can allow an owner to obtain a permit to remove offending trees by himself, or it can permit the removal of city trees only by persons authorized by the board.
It is essential for a property owner to be sure he is complying with city ordinances before he removes or modifies trees growing in the city’s right of way. The owner will need to find out who the city has authorized to oversee and enforce the tree policy.
For example, the city board supervising the tree policy may be a division within the city’s Parks and Recreation Commission.
The board can remove any tree or tree part likely to fall which is posing a danger or obstructing public travel, whether the tree is on city or private property. [Str & H C §22060]
If the tree is growing on private property, the board must provide the property owner with notice 10 days before removing the tree, unless the tree is an immediate threat to public safety. [Str & H C §22061]
The property owner has seven days to file an objection to the tree’s removal with the board. If the owner files an objection, the board may not cut down the tree until it provides the owner an opportunity to be heard, or until an agreement is reached regarding the tree’s removal. [Str & H C §22062]
When the board decides to plant, maintain or remove trees growing along city streets, it may tax the parcels of land affected by the improvements. The board is also authorized to use money from the city’s general fund appropriated for the tree policy, which it usually does. [Str & H C §22034]
Government liability for its trees
The ability of a person injured on public property to recover money losses from the government agency owning the property depends on the condition of the property at the time of the injury.
For the purpose of determining a government agency’s liability for its property, the property is classified as either:
- “unimproved” property in its natural state; or
- “improved” property altered by the agency owning the property.
If a tree growing on city property is left in its natural and “unimproved” state and injures a person using the property, the city is not liable for the injury.
A person using unimproved public property takes on the risk of injury while enjoying the benefits of using the property in its natural condition. [Calif. Government Code §831.2]
Unimproved property does not necessarily have to be in its original, pristine condition. Evidence of maintenance and preservation of public property will not render the property “improved” for the purpose of determining whether or not a city or government agency is liable for injuries occurring on the property.
However, owners of real estate adjacent to unimproved public property who are injured by trees growing on the public property may be able to recover their losses. Government immunity only applies when the injured person is a “user” of the city property.
Consider a property owner who lives adjacent to an unimproved city park.
Several large eucalyptus trees in the city park grow near the adjoining property.
One of the eucalyptus trees falls on the adjoining property owner’s house, destroying the roof and causing the property owner emotional distress.
The city claims it is immune from liability since the park is unimproved public property.
Can the property owner recover his losses from the city?
Yes! Government immunity from injuries suffered on unimproved public property applies only to users of the property – not property owners whose real estate lies adjacent to or near the city property. [Milligan v. City of Laguna Beach (1983) 34 C3d 829]
To avoid liability exposure, the city could clear all trees within 30 or 40 feet of the property line.
Conversely, liability does exist for injuries to users of “improved” public property.
Improved property means property altered by humans with artificial conditions or improvements in selected areas of the property.
For example, a park with a restroom and picnic facilities would be considered improved public property.
A city’s liability is limited to injuries caused by trees at sites where improvements have been made or where there is evidence of the city’s voluntary duty of care. A user of a city park with improvements installed only in some areas of the park may not recover money losses from the city for injuries he suffered while using an unimproved area of the park. [Fuller v. State (1975) 51 CA3d 926]
The city is not liable for injuries to users of either improved or unimproved city property even if the city voluntarily undertakes activity to protect users of the property, but fails to warn them about dangerous conditions the city knows or should have known about.
For example, a city beach is unimproved. The city provides lifeguards for an area designated for swimming. A swimmer drowns when he is caught up in a riptide.
The swimmer’s family claims the city is liable for the swimmer’s wrongful death since it provided lifeguard services, implying a duty of care taken on voluntarily for users of city property.
The city claims it is protected from liability for the swimmer’s drowning because the beach is a natural condition of unimproved public property.
Is the city liable for the swimmer’s drowning?
A city’s liability is limited to injuries caused by trees at sites where improvements have been made.
|No! Public beaches have been designated as unimproved and exist in their natural condition. The city’s placement of lifeguards on the beach does not alter its natural condition and does not eliminate the city’s immunity. Citizens cannot hold cities liable for failing to warn swimmers of a natural condition such as a riptide. [Gov C §831.21]|
Additionally, when a city employs staff to supervise and maintain its property, it is not necessarily undertaking a duty of care for users of the property.
Consider a group of teenagers who enter a city’s unimproved park to drive their all-terrain vehicles (ATVs).
The city has not altered the property, but it employs park rangers who help maintain and supervise the property and enforce the city’s park policies.
One of the teenagers becomes paralyzed as a result of an accident that occurs while he is driving his ATV in the park.
The injured teenager claims the park ranger should have warned him about any dangerous conditions existing in the park. The teenager also claims the city voluntarily provided the area for park users since the city employed rangers to supervise the park.
Is the city liable for the teenager’s injuries?
No! The park rangers were hired to care for the property, not people. Thus, the city has not assumed responsibility for persons injured while using the unimproved property. [Mercer v. State (1987) 197 CA3d 158]