California Legal News Reports Index
neighbor’s trees, branches or roots are encroaching into your
property. Do you
have the absolute right to cut or remove those branches from your
the answer is “No.”
the 1994 case of Booska v. Patel, a California
appellate court held that a neighbor does not have the absolute right
to cut encroaching roots and branches so that they end at his or her
property line. You must take into account the health of the tree before
you start cutting or chopping.
this case, the appellate court held that a neighbor must act reasonably
when pruning encroaching roots and branches.
Facts of Case: In the above case, Steven
Booska owned property next door to R.B. Patel's property. On Booska's
land was a 30 to 40-year-old Monterey pine
tree. The roots of the pine tree extended into Patel's yard. Apparently, the roots were
cracking Patel’s walkway.
Therefore, Patel hired a contractor to
excavate along the length of his yard three feet deep.
This excavation severed the roots of
filed a lawsuit against Patel. Booska
alleged that Patel's actions caused the tree to become unsafe, a
nuisance, and unable to support life.
As a result, the tree owner, Mr. Booska,
removed the tree at his own expense.
argued that he had an "absolute right" to sever the roots on his
property without regard to any injuries inflicted on Booska's land.
defended his actions, citing California
case law and statutes. From
these laws, Patel argued that a landowner has the right to prune
encroaching roots and branches back to his or her property line any way
he or she chooses. The
Trial Court agreed with Mr. Patel and the case was dismissed. Booska filed an appeal.
Appellate Court’s Analysis and Holding: The
appellate court analyzed various cases and laws. Some laws emphasize
that you generally have a right to control how you manage your own land. Other laws stress that you
have a duty to consider the effect of your actions on your neighbors
and their property.
appellate Court held and concluded that, “whatever rights
Patel has in
the management of his own land, those rights are tempered by his duty
to act reasonably”.
Potential Damages – The Value of a Mature
if you negligently kill or damage (for example causing disease to) the
neighbor’s tree while trimming them?
on the circumstances, you might be liable for reasonable costs of
replacing destroyed tree with identical or substantially similar tree
(that is, a mature tree). Such
be very expensive proposition. Your homeowner’s policy may or
cover the claim depending on the policy language.
Responsible neighbors, landscapers, tree trimmers, and others who
desire to avoid costly litigation ought to keep the Booska v. Patel
holding in mind when they prune or cut encroaching roots and branches.
you decide to cut encroaching branches or roots yourself, you must be
careful how you do it. You
should consider a less intrusive way to solve the problem rather than
taking Patel’s “Rambo” approach.
Tree Ordinances: Moreover, you ought to
also check your city’s tree ordinances and view ordinances,
if any. One reason
to check the city tree and view ordinance is verify that the type of
trees at issue can be cut or removed.
In some California
cities, certain types trees are illegal to cut down or prune.
If a neighbor’s tree branches or roots
encroach on your property, what should you do? One
solution is to informally and kindly ask your neighbor to trim his own
tree in the manner necessary to keep it from encroaching into your
approach shifts the risk of damage to the tree owner.
the neighbor does not cooperate, you (yourself or through an attorney)
might send a certified mail letter to the neighbor placing them on
NOTICE that a dangerous condition is present concerning the trees, and,
that if the tree causes any personal injury or property damage occurs
to your property, your neighbor will be legally responsible to pay for
all damages incurred. And
again, request that they trim the trees to stop the encroachment.
if you do decide to trim the trees or cut the roots yourself, be
careful and cautious because, if a court finds that you negligently
damaged the neighbor’s tree, you can be held liable for
UPDATE: RECENT CASE LAW
Loss of Aesthetic Value and Damage Enhancement:
In Rony v. Costa (2012) 210 Cal.App.4th 746,
a property owner sued a neighbor. The neighbor hired an
unlicensed day laborer to trim a tree which was encroaching over his
property. But the worker also cut (i.e., hacked with a chain saw)
substantial parts of the tree and that were on the tree owner's
The property owner sued
for wrongful injury to timber and won the trial. The Court
awarded damages for the replacement value of the part of tree that was
cut on the tree owner's property. Further, damages were awarded
for tree's loss of aesthetic value. Total actual damages
equaled $22,530. The trial court then doubled the actual damages
which it had authority to do per CA Civil Code §3346. Now the property owner's damags totalled $45,060 in
damages. Then, on top of that, the court awarded attorneys’ fees per CA Code of Civil Procedure §1029.8
(allowing award of fees when hiring unlicensed individuals who cause
injury performing a service that requires a license). On appeal,
the appellate court agreed with the trial court except it did not
agree that attorney's fees should have been awarded because the subject
code section did not apply on the facts of this case for technical
summary, in California, trees are well protected. Code of Civil Procedure § 733
and Civil Code § 3346 allow a tree owner to recover up to three times the cost
of repairing the damaged tree. Under case law, the tree owner can also, recover for the damage caused to the
aesthetic value of the tree.
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