Hello everybody. From time to time AOA members encounter problems with their neighbors’ trees. Frequently, the issue is with tree limbs which overhang the AOA owner’s property. Of course, the situation could be reversed whereby the branches of the tree belonging to the AOA owner grow over the neighbor’s land.
Disputes arise leading to issues such as: Who owns the tree? Who owns the encroaching tree branches? What right does a party subjected to “trespassing” tree limbs have to cut the branches? Other similar questions might also arise.
So to assist AOA members in analyzing their own issues, this month I am endeavoring to write a comprehensive summary of all the basic laws which pertain to trees. The good news is that they can be narrowed down to seven fundamental rules. Here they are:
Rule No. 1: Trees with trunks standing wholly upon the land of one owner belong exclusively to him, even though their roots may grow into the land of another. This means that a tree – including its branches – is owned by the person upon whose property the trunk is located. The fact that the roots may grow under the neighbor’s property is irrelevant to ownership. (Civil Code Section 833.) This law has been in effect since 1872.
Rule No. 2: Trees with trunks standing partly on the one owner’s land and partly on the land of an adjoining owner belong to both landowners. In other words, two people may own the same tree if the trunk straddles their boundary line. (Civil Code Section 834.) This law has also been in effect since 1872.
Rule No. 3: A neighbor may ordinarily cut and remove those portions of a tree which overhang his property if the trunk of the tree is located wholly on the property of the next-door owner. This third rule merits discussion. In most areas of property law, it is illegal for a person to use “self-help” to remedy a situation without first obtaining court approval. This is particularly true in the context of a tenant who fails to pay this rent. The landlord is not allowed to physically dispossess the tenant, but must instead obtain a court order through an unlawful detainer proceeding.
In the context of trees, Rule No. 3 says that self-help is permitted in most cases. Generally, a neighbor of the owner of a tree may physically lop off the branches that cross over his side of the boundary line if the trunk of the tree is entirely on the other side of the line. In fact, older cases suggest that a neighbor has the “absolute right” to cut off encroaching limbs “whether they cause damage or not.” (See Bond v. Bishop decided in 1952)
However, these days Rule No. 3 may be limited by the consideration that if the truncation of the overhanging portions of the tree would seriously damage or otherwise destroy the remainder of the tree, the adjoining owner may be compelled to prove that the nuisance or damage caused to his property outweighs the value of the tree to the owner. (Booska v. Patel, 24 C.A.4th 1786)
Conversely, if the nuisance effect to the adjoining property owner is minimal and cutting the branches would destroy the tree, the adjoining owner would not be allowed to sever the limbs. If he did, that person could be liable to the tree owner for substantial damages.
Lawyers reading this article should be aware that older cases suggest that actual damages might have to be suffered before Rule No. 3 is applicable. See Grandona vs. Lovdal 70 C.161.
Rule No. 4: Where the trunk of a tree is wholly located on the property of another, the adjoining owner may not cut any portion of the tree which is not on his side of the property line. In other words, the adjoining owner may not cross or reach over the property line to cut any portion of the tree which is not on his side of the boundary. If the adjoining owner violates this rule, and the cutting is otherwise without lawful authority, the person cutting the tree may be liable to the owner of the tree for up to triple the amount of damages caused by the wrongful cutting. As a corollary to this rule, an adjoining owner cannot enter on the land where a tree is standing to cut it down.
If the damage is accidental or based on an innocent mistaken belief, damages may be limited to double the value of the wrongful cutting. (Civil Code Section 3346)
Rule No. 5: Where the trunk of a tree stands partly on the land of one owner and partly on the land of an adjoining owner, there is only a limited right to cut any portion of the tree. The law is not particularly clear whether the owner of land has a right to cut any portion of a tree if the trunk straddles the boundary line of his property and that of an adjoining owner.
Early California cases held that the owner has only a qualified right to cut down or trim away the part of the tree which extends onto or over his land without the consent of the other owner. Those cases, which were mostly decided before 1937, involved boundary trees which constituted a windbreak serving to shelter and protect the building or property of the other owner. (See Anderson vs. Weiland 12 C.A.2d 730.) It is unclear whether those cases would be applied today in urban areas where trees serve primarily aesthetic, rather than functional, purposes.
Rule No. 5 was the subject of the recent California Court of Appeal case entitled Kallis v. Sones (208 C.A. 4th 1284). There, the appellate court determined that a neighbor who cut down a single 70 foot tall Aleppo Pine tree straddling the boundary line between the two properties was liable to the adjacent owner for $107,256.00! The facts of the decision were interesting.
Kallis bought his Los Angeles property in 1955. His next door neighbor, Sones, purchased his lot in 1977.
The Pine tree likely started growing on one side of the line or the other, the expert witnesses believed. Over the years, however, as the tree grew and the trunk widened, the tree=s trunk came to straddle the line. Nothing unusual there.
What made the tree abnormal is that a few feet up from its base, the trunk split into two separate, but still large trunks. One of those trunks grew over the Kallis property and the other grew over the Sones property. Each trunk supported a fully developed system of branches and limbs above it.
The secondary trunks were distinct and far enough apart even at their bases to allow room for a metal property line fence to run up and through the crotch of the tree.
In 2008, Sones, who became concerned that the tree could topple and cause damage, hired a worker to cut it down. However, instead of just severing the portion of the tree on the Sones side of the property line, the laborer sawed off both of the secondary trunks, leaving just a large stump in the ground. From that remaining stump, one could clearly see where each secondary trunk originated and how large it was at the base. In fact, both secondary trunks measured about 23 inches in diameter.
Also, about 59% of the trunk was on the Sones= side, whereas 41% was of the trunk was on the Kallis side.
In 2009, Kallis sued Sones for wrongful cutting and removal of the timber.
At trial, Sones admitted to cutting the tree, but argued that he should only be responsible for 41% of the total value of the tree since Sones owned the other 59%. Perhaps that made sense, but it did not persuade the judge.
At trial, the Court found that the cost to replace the tree was $53,628. It then doubled the amount (as allowed pursuant to California Civil Code Section 3346), and entered judgment against Sones for a whopping $107,256!
Sones appealed, but the Court of Appeal affirmed the Court=s ruling. The appellate court determined that there were two alternate measure of damages that the trial court could have assessed:
(1) The cost to replace the tree; and
(2) The reduction in the market value of Kallis’ property after the tree was cut as compared with the value of the property before it was cut.
Because the trial judge had found that Kallis was likely to replant a tree similar in kind to the one Sones destroyed, the appellate Justices upheld the “cost of replacement” measure of damages as the proper approach. (The diminution of the value of the real property probably would have been less than the replacement cost of the tree. Had the property been on the market for sale, it is likely that Kallis would have only received damages equal to the reduction in the value of his property.)
What AOA Members can learn from the Kallis vs. Sones case is that before you chop down a tree (or hire someone to do it for you), be certain that it is entirely on your own property. In that regard, it would be wise to obtain a survey plotting the location of the tree if you have any doubt as to which side of the property line the trunk is located.
Rule No. 6: Where an adjoining property owner threatens to violate any of the foregoing rules, the tree owner has a right to ask the court for an injunction restraining the adjoining owner from improperly cutting his trees. Under appropriate circumstances, the Superior Court has the power to immediately enjoin any person or property owner from cutting or trimming trees where serious damage is likely to result. In an emergency, an attorney may obtain a restraining order from the court in one or two days. Good, clear color photographs taken of the trees will assist the judge in making a determination as to whether or not to grant the injunction. A professional survey of the property showing the location of the trees relative to the boundary line would also be helpful.
Rule No. 7: Where a tree is wrongfully cut, the owner of the tree may recover the cost to replace the tree or the diminution in the market value of his property, whichever the Court believes would be the most fair.
The judicial system allows an aggrieved party to recover a monetary amount if a neighbor destroys an owner’s tree. In general the damages which may be awarded are 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 tree being destroyed. The Court is empowered to award the fairer of the two amounts.
Generally speaking, for wrongful injury to a tree the measure of damages is three times the sum that would compensate the tree owner for his actual detriment. However, where the “cutter” had probable cause to believe that the land on which he cut the tree was his own land, the amount of damages is twice the sum that would compensate for the actual detriment. Finally, if the person cutting the tree was relying on a survey prepared by a licensed surveyor, then the damages are the actual damages, rather than a multiple of them. (Civil Code Section 3346)
The statute of limitations for filing an action for damages for injury to a tree is four years from the date of the wrongful act. (id.)
So there you have it – all the basic tree laws which exist in California. What is important to bear in mind is that before cutting someone else’s encroaching branches, be sure to weigh the nuisance effect on you versus the damage it will cause to the owner’s trees. Under modern law, our Courts typically will apply a “reasonableness” test to the tree trimmer’s actions. If found to be unreasonable, the trimmer will be liable for substantial damages, as in the Kallis v. Sones case.
NOTE TO ATTORNEYS: The statutory laws concerning trees are codified under Civil Code Sections 660, 833, 834 and 3346, C.C.P. Section 733 and 734, Government Code Sections 25635 and 40401 and Penal Code Sections 384a and 622 (which make it a crime to harm trees on another’s land).
Dale Alberstone is a prominent litigation and transactional real estate attorney who has specialized in real property law for the past 39 years. He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association. He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.
Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell. An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity. You may Google “Dale S. Alberstone” for further background.
The foregoing article was authored in October 2015. It is intended as a general overview of the law and may not apply to the reader’s particular case. Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.
Questions of a general nature are warmly invited. Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 1900 Avenue of the Stars, Suite 650, Los Angeles, California 90067. Phone: (310) 277-7300.