Dimitry Tsimberg, Esq.

Neighbor Disputes - Fences and Trees (Part 1)

Fences

California Civil Code § 841 (amended in 2013) sets up a rebuttable presumption that adjoining landowners equally contribute to maintain, construct or replace fences between their properties. The statute now requires a 30-day written notice to a neighbor before incurring costs for construction, maintenance or replacement of the fence. This notice must describe the nature of the problem with the fence, the proposed solution, the estimated costs, a proposed cost-sharing approach, and a proposed timeline for getting the problem addressed. Once notice is given, both neighbors are presumed to be equally responsible for those costs. However, the presumption of equal responsibility can be overcome if, by a preponderance of the evidence, one party shows that equal responsibility would be unjust. If the cost of the fence for one neighbor would be substantially disproportionate to the benefit conferred, exceed the difference in property value before and after installation, or impose undue financial hardship, a court may overrule the presumption. Further, if the project is unreasonable (meaning unnecessary, excessive, or simply the result of one neighbor’s personal architectural, aesthetic or other preferences), a court may order one party to contribute a larger portion, or the entire sum, of the cost of the new fence.

Spite Fences

Civil Code § 841.4 governs what has become known as "spite fences" - "a fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance." Even trees and hedges planted in a row to form a barrier may be deemed a fence. Wilson v. Handley (2002) 97 Cal.App.4th 1301 [row of trees planted in the nature of a fence along property line may constitute a "structure" under Civil Code § 841.4, and could be deemed a spite fence]. The law provides strong remedies, including injunctive relief, against "spite fences."

Trees

Who Owns The Tree?

Under Civil Code § 833, if the trunk of a tree stands wholly on the land of one landowner, that landowner owns the tree regardless of whether its roots, foliage, or branches have grown onto the land of another. However, under Civil Code § 834, if the trunk of a tree stands partly on the land of two adjoining landowner, then both landowners own the tree.

Overgrown Limbs

Generally, shrubbery, foliage and branches that encroach onto the land of another is a nuisance. The owner of the encroached land may abate the nuisance by trimming the overhanging foliage, branches and limbs, as long as the owner acts reasonably so as not to seriously injure or kill the tree. If a landowner cuts foliage that is not encroaching and does not have the tree owner's permission to trim, the person cutting the foliage may be liable for up to triple the amount of the damage caused by the wrongful cutting (see below). However, if the damage is accidental or based on a mistaken belief, damages may be limited to double the value of the wrongful cutting. Civil Code § 3346.

Tree Roots

Although adjoining landowners have almost an unfettered right to trim encroaching limbs, branches and foliage, that is not the case with tree roots. If roots encroach under adjacent property, the property owner can sever the roots, but only if the roots are causing damage and only if done reasonably (perhaps by a professional). Then, the owner of the encroaching tree can be held liable for the actual out-of-pocket expenses incurred as a direct result of the tree's encroaching roots.

However, If the adjoining landowner negligently severs tree roots and seriously injures or kills a tree, the owner of the tree may sue. In Booska v. Patel (1994) 24 Cal.App.4th 1786, the plaintiff claimed his neighbor negligently cut the roots of his tree which in turn necessitated the tree's removal. The neighbor claimed he had an "absolute right" to cut the tree roots any way he wanted (in this case three feet deep) because they were uprooting his driveway. The Appellate Court disagreed and held that a homeowner's right to manage his own land must be "tempered by his duty to act reasonably." Thus, a landowner's right to remove the portions of an encroaching tree must be balanced against the obligations to act reasonably toward adjoining landowners and to refrain from causing foreseeable injury to neighboring property. California Civil Practice Guide, Real Property Litigation §11:42 (West, 2001).

Falling Trees

Landowners have a duty to inspect their trees to determine if a tree is healthy or hazardous, and to remove branches and even an entire tree if it poses a hazard. If the tree owner was negligent in maintaining the tree after warnings or visual signs of problems, then the tree owner is responsible for consequent damage. If the tree was well maintained and a storm or earthquake causes the tree to fall, then the damage was from an "act of God" and the tree owner is not responsible.

Tree Debris - Leaves, Fallen Fruit and Sap

Generally, the natural growth of trees includes shade, invading roots and leaves that blow in the wind. While a neighbor may have a limited right to reasonably trim encroaching branches and foliage (see above), the neighbor does not have the right to insist that the tree owner take responsibility for the natural growth and resulting occasional debris of the tree. However, the tree must be reasonably maintained and if the debris constitutes a "nuisance," the owner may be held liable.

Damages for Cutting Down Trees and Vegetation

Cutting down or killing trees, even unintentionally, can lead to both criminal and civil damages. Under Penal Code §§ 384a and 622, it is a criminal offense to harm or remove a tree from someone else's land, which is punishable by a fine of up to $1,000 and up to six months in jail.

In addition, under Civil Code § 3346 and Code of Civil Procedure § 733, the injured owner of "timber, trees or underwood" is entitled to a mandatory double damages (with certain exceptions), and, "[w]here the wrongdoer intentionally acted willfully and maliciously, intending to vex, harass, annoy, or injure, the plaintiff is entitled to treble damages. Caldwell v. Walker (1963) 211 Cal.App.2d 758, 762; Crofoot Lumber, Inc. v. Ford (1961) 191 Cal.App.2d 238. Punitive damages may be awarded in lieu of treble damages. Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 169. There is a five-year statute of limitations.

The term "underwood" commonly includes seedlings, saplings, shrubs, bushes, and small trees. Heninger v. Dunn (1980) 101 Cal.App.3d 858, 868 [trees and vegetative undergrowth]; see also, Pehrson v. Saderup (1972) 28 Utah 2d 77 [498 P.2d 648] [lilac bushes].

In addition, the person or company that actually cut down the tree can be held liable under various common law claims (e.g. negligence, trespass, conversion). "Courts have stressed that only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered." Hassoldt v Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 168, citing Heninger v Dunn (1980) 101 Cal.App.3d 858, 865. Various methods of computing damages have been used, including based on costs of restoration and diminution of the property's value. Rest.2d Torts, § 929; Mozzetti v. City of Brisbane (1977) 67 Cal. App.3d 565, 576.

Do you have a comment or want me to include a related issue? Please e-mail me.

coming soon ...

Neighbor Disputes - Encroaching Driveways, Lanscaping, Gates & Fences (Part 2)

This post is for educational and information purposes only. It is not legal advice on any particular case, and merely a general opinion of one California lawyer. You should not rely on it without consulting a competent attorney in your area about your specific case and facts. It is not intended to, and shall not, create an attorney-client relationship. So, be happy you got some free info and use your grey matter!

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