People like trees, but sometimes you can get too much of a good thing, such as when your neighbor has a tree that drops branches and debris onto your property, or when a tree with encroaching roots threatens damage to the foundation of your house.
As many realtors find out, disputes between neighbors over trees come into full bloom as soon as the property goes on market.
The facts regarding a known encroaching tree must be disclosed by the seller, especially if there is an ongoing dispute with a neighbor.
The seller can disclose the essential facts of any such dispute in the seller’s standard disclosures, on either the Transfer Disclosure Statement or the Seller Property Questionnaire.
If the seller fails to disclose the encroachment or dispute and the agent is aware of it, then the agent must disclose it.
In 1886, the basic California rule regarding encroaching trees was established in the case of Grandona v. Lovdal: tree branches overhanging a neighbor’s property are nuisances, and the adjoining landowner may cut the branches back to the property line.
In later cases, this same rule was extended to include the cut back of roots (see Crance v. Hems (1936) and Fick v. Nilson (1950)); however, the cutting back of branches and roots must be done in a way that does not harm the overall health of the tree (Booska v. Patel (1994)).
The neighbor may also sue for damages or force the tree owner to remove the tree (i.e., abatement) but will have to prove nuisance (Bonde v. Bishop (1952)).
A homeowner thinking of substantially cutting back an encroaching tree should be advised to consult an arborist beforehand.
Even where there is no danger of serious injury to a tree, cutting back a tree must be done carefully.
Sawing off a limb can be a trespass where the saw extends over the property line. You’ll want to take pictures of the tree beforehand and afterward.
It’s also not advisable to saw off tree branches in avertical plane above the property line, since cut branches may lift and curve up soon after cutting making it appear that cutting occurred on the wrong side of the property line.
Again, this may subject the pruner to a trespass claim which may result in an award for double or triple damages.
What happens when your rain gutters are being clogged up by your neighbor’s tree?
Does your neighbor owe you the cost of hiring a workman to remove the leaves?
Although in normal circumstances it’s unlikely that a neighbor would be liable for unclogging your rain gutters, depending on the facts and the judge, it can be a close call.
In the case of Bonde v. Bishop, three large branches from an oak tree extended 25 feet over the property line and continually dumped branches, debris and leaves — and on one occasion a branch crashed through Bonde’s garage.
The judge was clearly troubled by the situation and seemed to indicate that the owner of a tree with overhanging branches could be liable for cleaning up debris; however, nuisance would have to be proven.
The standard is not easy to meet, and only in exceptional cases is a court likely to find that a neighbor is responsible for cleaning gutters.
The fear of a toppling tree is realistic where trees grow especially high and outward, but does the existence of a hazardous condition alone without actual injury add up to a nuisance?
Well, it can. In Beck Development Co. v. Southern Pacific Transportation Company (1996), a case involving toxic substances, the judge stated that no one has the right to inflict unnecessary and extreme danger to the life, property and happiness of others and that you don’t need to wait for an actual injury to occur.
Thus, it would be within the power of a judge or jury to force the owner to remove an overhanging tree where the possibility of its toppling is real and not speculative.
For the beleaguered homeowner to prevail in such an action, an expert would almost certainly be required to come in to testify as to the potential hazard caused by the tree.
Taken form The California Association of Realtors.
— Reyne Stapelmann is a broker associate with Berkshire Hathaway Home Services, California Properties and the 2015 president of the Santa Barbara Association of Realtors. Contact her at reynestapelmann@cox.net or 805.705.4353. The opinions expressed are her own.