We’re regularly called upon to settle (or try to settle) neighbor disputes about trees, branches and roots.

You would think it is s simple issue. Well, read on…

Who owns what?

Yes, it’s true, a property owner owns the trees on his or her land. (So far, so good.) A tree whose trunk stands entirely on one’s own property belongs exclusively to the landowner even if the roots fo into the land of another. A adjacent landowner cannot enter another’s land, to cut it down – that’s called trespassing (among other things). A neighbor who cuts down the tree is liable to the owner for any resulting damage.

Let’s deal with tree-tops first:

An owner who fails to maintain a tree properly may be liable for the damages caused to the neighbor when a branch falls onto a house on an adjacent parcel. (Be glad you don’t live in tornado, or hurricane country…) Even the government is not immune from liability.

When the trunk of a tree is located wholly on the property of another, a neighbor had an absolute right to remove those branches that overhung his property, whether they cause damage or not. Note: “had.” Even then, the branches only could be cut back to the boundary line, and the tree itself – could not be cut down.

In removing the overhanging portions, the neighbor may use “self-help” and need not resort to court action. But this “absolute right” was taken away in 1994. Read on.

And now, to the root of the problem:

An owner also has liability for a tree’s roots. If roots encroach under adjacent property, there is a trespass and the neighbor can the cut roots if they cause damage . BUT, even when the roots of a tree encroach on a neighbor’s, the neighbor does not have an absolute right to remove the roots – if there is no evidence of damage to the neighbor’s property.

“Huh?” you ask. You mean that a neighbor has an “absolute right” with respect to branches, but not to roots? That’s the way it seemed, but the “absolute right” is really gone as to both branches and roots.

Booska v. Patel, 24 Cal. App. 4th 1786, 30 Cal. Rptr. 2d 241 (1st Dist. 1994), changed the “absolute right” business of trees. Branches, roots and self-help. The case involved a claim by a homeowner against his neighbor for damage to a tree caused by the negligent severing of roots, necessitating removal of the tree because it had become unsafe. The neighbor claimed he had an “absolute right” to cut tree limbs or sever tree roots on his property, even if the work was performed negligently or maliciously and even if the tree caused no damage to his property. The trial court agreed . The appellate court, didn’t. It held that a homeowner’s rights “in the management of his own land – are tempered by his duty to act reasonably.”

So, now, a landowner does not have an “absolute right” to cut the branches or roots of a tree located on adjacent property, and the landowner will be liable for damages if he or she acts negligently or unreasonably.

When it all goes bad, who pays – and what?

For the adjoining landowner:

Generally, the owner of the tree is liable for any actual damages caused by its branches or roots.

However, an adjoining landowner can recover only the actual money damages sustained as a result of a tree’s encroachment on his or her land. Thus, a mere encroachment that does not cause actual damage to an adjoining landowner does not give a right to recover damages.

For the owner of the tree:

The owner’s recovery is generally limited to the difference between the value of the real property before and after the injury and “never exceed the value of the land prior to the injury.” The owner may alternatively seek to recover the cost of restoring the property to its prior condition, but “only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered.” If restoring the land to its prior condition is impossible or impracticable, then “the landowner may recover the value of the trees or shrubbery, either as timber or for their aesthetic qualities, again without regard to the diminution in the value of the land.”

In addition, if an adjoining landowner’s act (of chopping down a tree, cutting off its branches, or ripping out its roots) is willful and malicious, the injured owner may recover treble damages against the wrongdoer.

Ok, but what about common trees?

Trees that stand partly on the land of two or more coterminous owners belong to them in common. And, no owner has a right to cut down a tree located on the boundary line or to cut away the part that extends on his or her land without the consent of the others – even if the continued existence of the tree or its overhanging branches will cause damage to his or her property.

So, in the case of a “common tree,” the adjacent owner is in a worse position with respect to his right to protect his property than if the trees are owned wholly by the other owner. In other words, he has less right to cut the branches because he owns a portion of the tree than he would have if he owns none of it.

And you thought being a lawyer was easy!

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