- August 29, 2018
- Posted by: Mike Kelly
- Categories: Easements for View, Real Estate, Trees
Trees can be a wonderful thing. Graceful ancient redwoods. Shade giving valley oaks. They are emblems of Mother Nature at work.
They also grow and block views.
And of there is one thing that will get somebody’s knickers in a knot, it’s the neighbor’s dang tree that they refuse to trim or top that is now blocking both your sunlight and your $1,000,000 view of the Golden Gate Bridge.
The good news is that most of the tree trunk is just inside the boundary line of your property, right where the fence was. The fence, well, that portion of it anyway, is long gone; because the roots and trunk of the tree bent it, mangled it, and pushed it out of the way – years ago.
You remember reading, somewhere, that your property line goes from the center of the Earth to the highest of the heavens, so, this tree – is yours … all yours … to do away with. Fire wood it is !
Or, is it ?
Can you just start hacking away ?
Can you cut it all the way down, or can you just “trim” it a little (like about trimming 20 feet off the top).
And, even if you could, should you ?
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You’ll be happy to know that this tree “situation” is not uncommon, certainly not in California. And certainly not in the SF Bay Area, where those views really can cost $1,000,000 – extra.
So, what’s the story ? Is there really an “absolute right” to cut branches or even a whole tree – if they or it is on your side of the property line? Mostly.
Well, yes. And, no.
(Damn lawyers. It’s always “yes, and no” – or, even worse, “it depends.”)
Back in the day, there was a perceived “absolute right” to chop away. But, that changed. In 1994, the California courts said that , while you may have the right to chop away, you must temper that right by acting reasonably when you do so.
But in this scenario, we don’t even get to that “absolute right” thing – because, remember, the tree was “mostly” on your property. Which means it was still, “partly” on the neighbors’ property too. That itsy bitsy little factoid changes things. It means that you and the neighbor own the tree “in common.”
Well, that is, if you are absolutely certain where the property line is. It may be time to go get a surveyor. And, not all surveyors are created equal – so get a good one. Why ? Because if the trunk of the tree is one your land, even if the roots and branches go onto the neighbor’s, then the tree is “yours.” So you’ll want to know exactly where that property line is.
If the tree is “co-owned” you don’t get the right to chop away at the branches and roots on your side with abandon either. Your may not use your part unreasonably so as to “injure or destroy the whole.”
But, you say, the darn tree makes a mess. It’s one of those imported eucalyptus trees, the ones that shed bark like a dog sheds water, and drops sap everywhere. And, people say, those trees are a fire hazard too ! “And,” you add, “it’s breaking up my sidewalk.”
So can you chop away ? After all, the tree is a private nuisance. Isn’t it ?
It probably is a ‘private nuisance’ and you do have a right to self-help (i.e. use of a chain-saw). But I’d think twice before revving it up and cutting away.
While the remedy for the legal claim can be ‘abatement’ – or – ‘damages’ (including damages for “discomfort and annoyance” which are also available).
The tree-owing neighbor has a duty to maintain those trees. That means they have to act as “a person of reasonable prudence” in deciding how to maintain the trees so as to not allow foreseeable injury to another by “action or non-action.”
There are any number of cases where a recalcitrant neighbor gets nailed for failing to maintain. And some cases where a neighbor can get nailed *for* maintaining the trees (and sidewalks) of another. (Think: landscaping along a city street along side your property, the sidewalk, and the street curb. If you exercise “dominion and control” of that landscape area, you can be liable for injuries to passers by. Ouch.)
It can be a long and convoluted area of the law. And, because I’m a glutton for punishment, we talk more about this in future articles. 🙂