This article discusses the encroachment of solely-owned trees and encroachment resolutions.
The root of the problem
A property owner’s Shamel ash tree has grown so large its branches and roots now extend into the ground and air space of his neighbor’s property.
The neighbor’s concrete driveway and patio are being broken up by the force of the growing roots.
The roots are also interfering with the natural growth of the neighbor’s lawn. Fruit trees near the property line have diminished in their annual production.
Leaves and small branches from the tree continually litter the neighbor’s house and yard. The rain gutter for the roof runoff must be cleared of leaves regularly. The large branches of the tree hang so far over the neighbor’s house they break shingles loose during windstorms.
The neighbor wants to hire a tree trimming service to cut the branches and roots back to the property line, a vertical swatch.
However, the property owner claims the neighbor has no right to cut any part of his tree since the tree trunk is not located on the neighbor’s property.
Can the neighbor cut overhanging tree branches and invading roots without permission from the property owner who owns the tree?
Yes! A neighbor may resort to self-help to cut the branches off an encroaching tree. [Bonde v. Bishop (1952) 112 CA2d 1]
The neighbor may not, however, cut beyond the property line. [Fick v. Nilson (1950) 98 CA2d 683]
Also, the extent of the removal is controlled by a reasonable need to remove.
Who owns the tree?
Trees are improvements which are part of the real estate. Ownership is determined by the location of the trunk, not the branches or roots. [Calif. Civil Code §§833; 834]
Trees whose trunks grow on the boundary line separating two adjoining parcels of land are called common boundary trees or line trees. Common boundary trees are jointly owned by the adjoining property owners. [CC §834]
Trees whose trunks are planted on one side of a boundary line belong solely to the owner of the property on which they grow. [CC §833]
A solely-owned tree encroaches on a neighboring property when its branches or roots reach past the boundary line, sometimes called the contiguous or common property line.
A property owner confronted with an encroaching tree has three potential remedies:
- money damages;
- self-help; and
- mandatory injunction to remove the encroachment.
The remedy available depends on the extent of the encroachment.
An encroachment can be either:
- a permanent encroachment; or
- a continuous encroachment. [Tracy v. Ferrera (1956) 144 CA2d 827]
An example of a permanent encroachment is the construction of a building which lies partly on the neighbor’s property. [Mattos v. Mattos (1958) 162 CA2d 41]
Physical damage caused by a tree to a neighbor’s property is a permanent encroachment, not a trespass. A neighbor may recover the money losses for physical damage from the adjoining property owner. [Bonde, supra]
For example, if a tree’s branches fall on the neighbor’s parked car and damage it, the neighbor may recover the money losses from the owner of the tree.
For a permanent encroachment, such as damage resulting from an encroaching tree, the neighbor seeking court relief to recover his losses must file an action within three years of the time he discovers the permanent encroachment if he does not voluntarily settled the dispute with the owner of the tree. [Calif. Code of Civil Procedure §338]
Self-help tree trimming
If an encroachment can be abated (discontinued), it is considered a continuous encroachment. [Mattos, supra]
A tree not causing physical damage, but only encroaching on a neighbor’s property by its overhanging branches or invading roots, is a continuous encroachment.
The neighbor subjected to a continuous encroachment may take the interference into his own hands by cutting the offending branches and roots back to the property line.
This curative action is called self-help. [Grandona v. Lovdal (1886) 70 C 161]
The neighbor who cuts off overhanging branches from an encroaching tree may keep or discard any fruit or firewood from the overhanging branches. [Grandona v. Lovdal (1889) 78 C 611]
The neighbor may also recover reasonable costs for the self-help. [City of Berkeley v. Gordon (1968) 264 CA2d 461]
However, the neighbor’s self-help must occur on his own property.
The neighbor cannot, for example, cut the encroaching branches or roots beyond the boundary line, kill the tree or enter the adjoining owner’s property without permission. [Fick, supra]
A neighbor who exercises self-help beyond his boundary without permission is trespassing.
The trespassing neighbor is liable to the tree’s owner for any damage to the tree. Further, any trespassing neighbor judged to have acted maliciously or willfully will be responsible for triple the damages. [Fick, supra]
A neighbor may only use self-help if a reasonable need to remove the encroachment exists.
For example, an owner’s tree roots encroach upon a neighbor’s property.
The neighbor removes the roots up to the property line. As a result, the tree becomes unsafe, and the owner has to remove it.
The owner seeks money damages, claiming the neighbor unnecessarily removed roots, which caused injury to his tree.
The neighbor claims he has an absolute right to remove encroachments up to the property line.
However, the neighbor does not have an absolute right to remove encroachments up to the property line since a reasonable need must exist to remove the encroaching roots. Further, the roots must be removed without unreasonable injury to the tree. [Booska v. Patel (1994) 24 CA4th 1786]
A continuous nuisance
Another type of continuous encroachment is a nuisance.
A nuisance is any condition which prevents a neighbor’s free use or enjoyment of his property or is injurious to his health. [CC §3479]
For example, a property owner’s land contains a row of eucalyptus trees planted several feet inside the boundary line.
The neighbor’s property contains a grove of pecan trees. The eucalyptus tree roots extend beyond the property line into the soil of the neighbor’s property. The roots are depleting the soil’s nutrients.
Can the owner of the eucalyptus trees be ordered to remove or modify his trees by a mandatory injunction?
Yes! The owner of the encroaching tree may be ordered to abate the condition either by modifying or removing the tree if the tree is deemed a nuisance. [Crance v. Hems (1936) 17 CA2d 450]
The remedy of mandatory injunction to remove the encroaching branches or roots is only available when the encroachment constitutes a nuisance. [Bonde, supra]
If a tree is not judged to be a nuisance, the owner will not be required to eliminate the encroaching roots and branches. The neighbor will then be limited to his own, self-help methods. [Grandona (1886), supra]
Also, a tree owner will not be required to take corrective action to prevent interferences with a merely speculative future use of the neighbor’s property.
For example, a neighbor cannot require a landowner to remove his trees simply because the trees might stunt the growth of crops the neighbor may eventually grow near the boundary. [Grandona (1886), supra]
Air and sunlight obstructions are insufficient interferences to warrant the elimination of trees as nuisances.
For example, a property owner has several eucalyptus trees which he has allowed to grow so large they shade his neighbor’s south-facing windows from the winter sun.
The neighbor had his house constructed with extra south-facing windows to expose as much of the interior of the house as possible to winter sunlight, using solar energy for heat.
The neighbor contends the trees are a nuisance because they prevent him from using and enjoying his property. The neighbor seeks a court order requiring the owner to trim or remove the trees.
May the owner maintain the trees even though they are an obstruction of the neighbor’s sunlight?
Yes! Property owners will not be ordered to give their neighbor air or light easements. Shading a home from “passive” solar heat, such as heat received through extra windows, is not considered a nuisance. [Sher v. Leiderman (1986) 181 CA3d 867]
However, active solar collectors are provided light easements under the Solar Shade Control Act. A property owner may not plant or maintain trees which will shade a neighbor’s house between 10 a.m. and 2 p.m. (standard time) if the neighbor has installed active solar collectors. [Calif. Public Resources Code §25982]
Active solar collectors
A solar collector protected under the Solar Shade Control Act must be a “fixed device” or part of a fixed device used to gather solar energy.
Thus, south-facing windows installed for the purpose of bringing in more sunlight do not qualify as active solar collectors. [Pub Res C §25981]
The Solar Shade Control Act does not apply to timberland trees or agricultural land.
Also, if a tree has been growing before the neighbor installs the active solar collector, the owner of the property containing the tree may replace the tree if it dies subsequent to the installation of the solar collector. [Pub Res C §25984]
A single-family residential listing broker must diligently inspect the property, or rely on the report of a home inspector, and disclose information on the property’s condition which might affect a prudent buyer’s decision to acquire the property. [Easton v. Strassburger (1984) 152 CA3d 90]
The broker’s inspection should include the roots and branches of trees located on the listed property and the neighboring properties encroaching on the listed property. If an encroachment exists or is likely to occur, the information is to be given to the buyer.
The buyer’s broker should also inform his buyer of the steps he or the seller can take against encroaching trees should the buyer purchase the property.