"He who plants a tree, plants hope," wrote poet Lucy Larcom, but, these days, the line might more appropriately read: "He who plants a tree, sows discord." Tree disputes between neighbors in recent years have lead to lawsuits and even assaults.
In California, the legal system has changed its priorities when it comes to encroaching branches and roots. It now leans toward protecting trees. Some cities preclude landowners from cutting down certain types of trees on their own land, and laws allowing neighbors to trim encroaching roots and branches have been considerably weakened. Before lifting that ax or chain saw, it's wise to get an overview of California laws regarding trees.
California Tree Law for One's Own Trees
Under California Civil Code Section 833, trees with trunks that stand entirely on the land of one owner belong exclusively to that person. This is the case even if the tree's roots may grow into the land of another. The general rule in California allows a landowner to remove trees that are growing on their own property and so belong to them as long as the species is not legally protected. However, that is not the case in all cities and counties in the state, so it pays to research the law before taking out a tree.
Some cities in California have local laws that safeguard "important" trees on both public and private property. These laws are termed heritage tree ordinances and they protect specific types of trees, not forests in general. The protected tree species vary from one community to another, but, in general, heritage tree designation means the trees are of a certain size, age or species that is important to the community.
When a Tree Trimming Permit is Needed
In Sacramento, California, a homeowner needs a permit to remove a tree if it is either an oak or is designated as a heritage tree. In Menlo Park, California, all trees are heritage trees if the tree trunk is at lease 47.1 inches around when measured 54 inches above the ground. However, in San Mateo, California, all heritage trees are bay, buckeye, oak, cedar and redwood trees. They must have a diameter of 10 inches or more as measured at 48 inches above the natural grade.
The city of Fresno requires permits for most tree work, while Los Angeles protects only oak trees that are 8 inches or greater in diameter measured 54 inches above the ground.
Cutting Down Other Trees
While cutting down certain trees on one's own real estate may be permitted, an individual may not, generally, remove trees on land that doesn't belong to them without consequences. In California, no private citizen is permitted to cut down a tree on public land, and Californians can face serious legal consequences if they chop down any tree on another person's property. This is equally true of trees on property lines.
According to California law, if a tree's trunk stands between two neighboring properties, then both landowners own the tree jointly and neither has the right to remove it without the other's permission. Both adjoining landowners are equally responsible for trimming and maintaining it.
Self-Help for Encroaching Trees
When a tree grows on one side of a property line but branches of the tree cross into the property of a neighbor, the part of the branches that cross the boundary line belong to the neighboring landowner. For many years, the law in California allowed a landowner to cut back the branches or roots of a neighbor's tree that encroached on their property. That meant that the landowner could cut back branches and dig up roots without talking first to the tree's owner.
However, the tree law has changed over the years. Today, the old interpretation, approving of self-help measures, has new caveats. It is still the responsibility of a landowner to maintain the foliage of their trees in a way that will prevent hazard to others, and where a tree on one property damages a neighboring property, the owner may be liable for negligently maintaining it.
However, if branches or roots cross a property line, a neighbor cannot hack them back if doing so will cause harm to the tree. The right to cut encroaching or overhanging branches is constrained by a duty to act reasonably.
Cutting Encroaching Roots and Branches
In the 1994 case of Booska v. Patel, a California appellate court ruled against a neighbor who claimed to have the absolute right to cut encroaching roots and branches at the property line. Property owner Booska had a 40-year-old pine tree whose roots extended into Patel's yard. Patel severed the roots and Booska sued, claiming that severing the roots had made the tree a nuisance that had to be removed. Patel claimed that they had the right to prune encroaching tree roots back to the property line any way they chose.
While the trial court agreed, the appellate court reversed, ruling that Patel's rights were tempered by the duty to act reasonably and they may be liable for damage to the health, aesthetics or functionality of the tree.
Liability for Hacking Neighboring Trees
What does a landowner risk if they take an aggressive approach to trimming back encroaching tree branches or roots? Quite a lot in California.
For wrongful injury to a tree, the owner can receive three times the amount of the actual damages. And for destruction of a tree, the law permits an aggrieved party to recover monetary damages: either the cost to replace the tree or the reduction in the market value of the tree owner’s property as a result of the destruction of the tree. Suit must be brought within four years from the act.
Tree Cutting Case Law
The 2012 case of Rony v. Costa [210 Cal.App.4th 746] is a good example that might serve as a warning to those who do not act reasonably. One neighbor paid a tree trimmer to cut back a tree that was encroaching over his property. The trimmer used a chain saw to hack down substantial parts of the tree that were on the tree owner's land.
The property owner sued, and the court ruled in their favor, awarding damages for the replacement value of the tree, as well as the tree's loss of aesthetic value. Actual damages amounted to $22,530, but under Civil Code Section 3346, the court had the right to double the actual damages, which it did, awarding the tree's owner $45,060.
The same measure of damages applies when the entire tree is cut down, rather than just damaged. In the 1984 case of Kallis v. Sones (208 C.A. 4th 1284), the California appellate court reviewed the matter of one neighbor, Sones, who cut down a 70-foot Aleppo pine that grew on the boundary line between the Sones property and the Kallis property, with 41 percent on Kallis' property, and 59 percent on Sones property. The court found that the cost of replacing the tree was $53,628 and refused to limit the award to 41 percent of that amount. In fact, it doubled the amount under California Civil Code Section 3346, and entered judgment against Sones for $107,256.
Dealing With Nuisance Trees
Owners of property have the duty to maintain their land to prevent it from becoming a nuisance for neighboring property owners. “Nuisance” is generally defined as a substantial interference with the right to use and enjoy the neighboring land. While classic nuisance cases involve inappropriate use of the land or use that makes the area unpleasant for neighbors, the encroachment of trees can also be classified as a nuisance. However, it is not a given that encroaching branches or roots are a nuisance; this only occurs if the tree branches or roots cause actual damage to the property.
Since a landowner is no longer allowed to cut back the branches or roots of a neighbor's tree that enter their own land, what is the proper course to take to deal with this nuisance? It is out of the question to cut the entire tree down or to hack it back in a manner that will damage or kill the tree. In California, it is forbidden to ruin the aesthetics of the tree or to cause it serious injury by cutting.
When an Expert Report Is Needed
The best course of action is to keep calm and use common sense in case of an encroachment. Talk to the individual who owns the tree and tell them about the problem. If it appears that there is potential for harm from the tree's encroachment, a danger to life or property, bring in a tree specialist to confirm the danger.
Forward the report to the tree's owner and, if there is no action, take the matter to court to seek an injunction and ask for an order to have it removed. The court is very likely to treat an expert report with respect and take action.
Trees Blocking View
What about when one landowner's trees block the sunlight that would otherwise fall on a neighbor's garden or backyard? Or, even worse, block a neighbor's view of the ocean? If the word "nuisance" leaps to mind, think again. In California, a tree blocking light on a neighbor's property is not a legal nuisance. That means that the impacted landowner cannot get the court to do anything about this in most circumstances unless the particular city's ordinances provide this type of protection. It is only when a tree obstructs a solar easement granted under the Solar Shade Control Act or when trees were deliberately planted for spite.
This was the ruling of the California Court of Appeal in the case of Sher v. Leiderman, [1986, 226 Cal. Rptr. 698]. Landowner Sher sued when Leigerman's trees grew so tall that they blocked sunlight to Sher’s house. The court ruled that this was not an actionable nuisance and that Leiderman did not act with malice when he planted the trees 10 years earlier.
It also ruled that the protections of the Solar Shade Control Act were limited to “active solar collectors” designed for the specific purposes of the act. It does not provide an easement for “passive solar collectors,” like south-facing windows that warm buildings by letting in more sunlight.
California "Spite Fence" Laws
California does have a "spite fence" statute that allows a person to sue when a neighbor deliberately and maliciously erects a fence 10 feet or taller to intentionally annoy the next-door landowner. This can give an individual a legal cause to sue if a group of trees is planted in a row deliberately to block the neighbor's view.
- AOA: Tree Law – All You Need to Know! – By Dale Alberstone, Esq.
- Law Offices Of Stimmel, Stimmel & Smith: Encroaching Trees: Who Has the Right to Do What?
- UCNAR: The Oak Tree Ordinance
- Hastings Law: The Definitive Guide to Tree Disputes in California
- Tree Removal: Regulations by State
- Tozer Law: California Tree Law
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.