Hello everybody.  It has been five years since I last published a general article about tree law for AOA members.  So, this month I thought I would provide a refresher discussion on that topic and update it at the same time.

Overview

Most frequently, tree disputes arise out of tree limbs from the tree of one owner which overhang an adjoining neighbor’s property.  Other frequent disputes arise where the roots of the owner’s tree cross under a concrete or other hardscape surface of the neighbor’s land and cause that surface to rise up. 

Such disputes are typically resolved by the provisions of one or more California statewide statutes (some of which are nearly 150 years old), as interpreted by our courts when applying today’s standards.  

To assist AOA members in evaluating their rights, obligations, and liabilities with tree issues, below is a summary of all the basic California laws which pertain to trees.  

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Those laws can be narrowed down to eight fundamental rules. Here they are:

Rule No. 1: Trees with trunks standing wholly upon the land of one owner belong exclusively to that owner, even though their roots may grow into the land of a neighbor.  This means that a tree, including its roots, is owned by the person upon whose property the trunk is located.  (Civil Code Section 833.)  That law has been in effect since 1872.  Presumably, Rule No. 1 applies to overhanging branches as well.

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 or her property if the trunk of the tree is located wholly on the property of the next-door owner.  This third rule merits discussion.  In some 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 his or her 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 next-door neighbor to the owner of a tree may physically lop off the branches that cross above the neighbor’s side of the boundary line if the trunk of the tree is entirely on the other side of the line.  Older cases suggest that a neighbor has the “absolute right” to cut off encroaching limbs “whether [the cutting] causes damage or not” to the tree.  (See Bond v. Bishop decided in 1952.)

Nowadays, 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 neighbor will be compelled to prove that the damage or nuisance caused to his or her property outweighs the value of the tree to the owner.  (Booska v. Patel, 24 C.A.4th 1786) That same consideration would apply to roots growing under the neighbor’s property that would raise up the neighbor’s hardscape.

Rule No. 4:  Where the trunk of a tree is wholly located on the owner’s property, the neighbor may not cut any portion of the tree which is not on the neighbor’s side of the property line.  In other words, the adjoining neighbor may not reach over the property line to cut any portion of the tree which is not on the “cutter’s” side of the boundary. Similarly, a neighbor cannot enter onto the owner’s land where a tree is standing to cut it down or even trim it.  If the neighbor violates this rule, 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.  

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 clear as to what extent an owner of land on one side of a boundary has a right to cut any portion of a tree where the trunk straddles the property line.

Early California cases held that a co-owner of a tree has no right to cut down or trim boundary trees which constituted a windbreak serving to shelter and protect the building or property of the other owner of the tree, even if the trees damaged the tree trimmer’s land.  (See Anderson vs. Weiland 12 C.A.2d 730.)  

Fast forward to 1984 when Rule No. 5, applied to different facts, was the subject of the California Court of Appeal case of Kallis v. Sones (208 C.A. 4th 1284).  There, the appellate court determined that a neighbor who cut down a 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 case were interesting and instructive.

Kallis bought his Los Angeles property in 1955.  His next-door neighbor, Sones, purchased his lot in 1977.

The Pine tree likely started growing only on one side of the two sides of the property line, but not on both sides.  Over the years, 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, large secondary trunks.  One of those trunks grew over the Kallis property and the other grew over the Sones property.   

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 Sones’ side of the property line, the worker sawed off both of the secondary trunks, leaving just a large stump in the ground.   

59% of the trunk stump was on the Sones side, whereas 41% of the stump was on the Kallis side.

In 2009, Kallis sued Sones for wrongful cutting of the tree.

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 trial judge.

The trial 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 measures 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.

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 neighbor from improperly cutting the owner’s trees.  Under appropriate facts, the Superior Court will 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.  

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 fairest.

Our 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 on a case- by-case basis.

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 or her actual detriment.  However, where the “cutter” reasonably believes that the land on which he/she cut the tree was his or her 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). 

Incidentally, the statute of limitations for filing an action for damages for injury to a tree may be as long as five years from the date of the wrongful act. (C.C. Section 3346(c)).  But in some cases, it may even be unlimited.  (On this latter point, attorneys should read the newly published September 22, 2021 case of Kahn v. Price.

Rule No. 8:  An owner has a right to plant tall trees or allow his or her trees to grow tall even if they block sunlight to, or otherwise obstruct a beautiful view from, the neighbor’s garden, backyard or other portions of the neighbor’s property.  In law, lawyers understand that to mean that no neighbor has an easement for “light or air” from his or her property.

There are several important exceptions to Rule No. 8.  One is that an owner cannot maliciously plant or maintain a “spite” fence (which would include a row of trees) against the neighbor exceeding 10 feet in height for the purpose of annoying the neighbor.

Another exception is that applicable CC&Rs or local city or county ordinances may limit the height of trees in order to preserve views for neighbors.  

A third exception is provided by the Solar Shade Act.  In general, that legislation says that after a neighbor has installed solar panels, the owner next door cannot plant a new tree which then is, or thereafter will be, so high as to cast a significant shadow onto the neighbor’s property during certain daytime hours.  That law does not apply to trees planted before the neighbor installs solar panels.

Concluding Remarks

So, there you have it – ‍‍all the basic California tree laws.  

What is of particular importance to bear in mind (because it may lead to an expensive lawsuit, among other reasons) is that before cutting someone else’s encroaching branches or roots, be sure to weigh the nuisance effect on you versus the damage the cutting will cause to the owner’s trees.  

Finally, under modern law, our Courts typically will apply a “reasonableness” test to a tree trimmer’s actions.  If found to be unreasonable, the trimmer may be liable for substantial damages, like the $107,256 awarded in the Kallis v. Sones case.

Citations For AOA Members Who Are Also Attorneys  

The statutory laws concerning trees are codified under Civil Code Sections 660, 833, 834, 841.4 and 3346, C.C.P. Sections 733 and 734, Government Code Sections 25635 and 40401(h), Public Resources Code Section 25982 et seq., and Penal Code Sections 384a and 622 (which make it a crime to damage an owner’s trees). 

 

Dale Alberstone is a prominent real estate attorney who has specialized in real property and resident manager law for the past 40+ years.  He is a former arbitrator for the American Arbitration Association and a former mediator of real estate disputes.  

Mr. Alberstone has been awarded a 5-Star AV rating from Martindale-Hubbell, the 134-year-old national rating service of attorneys.  A 5-Star AV rating is the highest possible rating bestowed and reflects an attorney who has reached the heights of professional excellence and who is recognized for the highest levels of legal expertise, communication skills and ethical standards.

The foregoing article was authored on November 1, 2021.  It is intended as a general overview of California law only and may not apply to the reader’s particular case.  Readers are cautioned to consult a lawyer 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, 269 S. Beverly Drive, Suite 1670; Beverly Hills, California 90212, or phone: (310) 277-7300.

 

To read more articles from the December 2021 Issue of the AOA Magazine, click here.