Return to California Legal News Reports Index


TREE LAW
THE “CUTTING EDGE”
 
A 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 property?  Surprisingly, the answer is “No.”
 
In 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.
 
In 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 Booska’s tree. 
 
Booska 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.
 
Patel argued that he had an "absolute right" to sever the roots on his property without regard to any injuries inflicted on Booska's land. 
 
Patel 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. 
 
The 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 Tree:  What if you negligently kill or damage (for example causing disease to) the neighbor’s tree while trimming them?  Depending 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 replacement can be very expensive proposition. Your homeowner’s policy may or may not cover the claim depending on the policy language. 
 
Be Careful: 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.
 
If 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 property.  This approach shifts the risk of damage to the tree owner.
 
If 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.
 
Again, 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 damages.

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 land. 

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 reasons.

In 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. 


 2007, updated 2013


Return to California Legal News Reports Index