What can we do about the tree's our neighbor's planted causing damage to our property?
Full Question:
Answer:
A landowner has a duty to prevent nuisances which might adversely affect the property of an adjoining landowner. A nuisance is a substantial interference with the right to use and enjoy land, which may be intentional, negligent or ultra hazardous in origin, and must be a result of a defendant's activity. If a nuisance interferes with another person's quiet or peaceful or pleasant use of his/her property, it may be the basis for a lawsuit for damages and/or an injunction ordering the person or entity causing the nuisance to stop or limit the activity. Abatement of a nuisance may involve elimination of a nuisance by removal, repair, rehabilitation or demolition. Liability to an adjoining landowner for injuries resulting from the improper use of one's property has been founded upon the legal theory of nuisance.
The encroachment of a tree on the land of an adjoining landowner causing damage could be held to be a nuisance and result in damages against the landowner on which the tree was located. A landowner is generally held to the duty of common prudence in maintaining trees on his or her property in such a way as to prevent injury to his or her neighbor's property. Encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. In such a case, the owner of the tree may be held responsible for harm caused by it, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. Real damage must be shown to result from the encroaching tree and leaves.
Generally, however, in cases where trees belonging to one property owner fall on and damage or destroy adjacent property, the tree owner is only responsible for damage if some failure to maintain the tree contributed to the damage. If the damage was solely the result of a thunderstorm or act of God, the tree owner will not be responsible, as the damage could not have been foreseen. If a tree limb appeared precarious and the owner failed to maintain the tree after warnings, the owner may well be responsible for resulting damage when a storm causes the limb to fall. If, however, the tree was well maintained and a storm causes a tree limb to crash into a neighbor's roof, the tree owner is not responsible. If the tree owner allows the tree to grow so that it uproots the fence, it would be considered an encroachment onto the adjacent property. In that instance, the tree owner would be required to remove the offending tree. A boundary tree is one planted on the boundary line itself and should not be removed without mutual agreement. Leaves which fall off and end up on adjacent property are considered a natural occurrence and are the responsibility of the landowner on whose property they ultimately come to rest.
Property owners in every state have the right to cut off branches and roots that stray into their property, in most cases this is the only help that is provided by the law, even when damage from a tree is substantial. A property owner who finds a neighbor's tree encroaching must first warn or give notice to the tree owner prior to commencing work and give the tree owner the chance to correct the problem. If the tree owner does nothing, the tree can still be trimmed. As a general rule, a property owner who trims an encroaching tree belonging to a neighbor can trim only up to the boundary line and must obtain permission to enter the tree owner's property, unless the limbs threaten to cause imminent and grave harm. Additionally, the property owner cannot cut the entire tree down and cannot destroy the structural integrity or the cosmetic symmetry and appeal of a tree by improper trimming. Local laws should be consulted for applicable requirements in your area.
The following are California statutes:
§ 833 Civ.
Trees whose trunks stand wholly upon the land of one owner belong
exclusively to him, although their roots grow into the land of another.
§ 834 Civ.
Trees whose trunks stand partly on the land of two or more coterminous
owners, belong to them in common.
§ 841 Civ.
Coterminous owners are mutually bound equally to maintain:
1. The boundaries and monuments between them;
2. The fences between them, unless one of them chooses to let his
land lie without fencing; in which case, if he afterwards incloses
it, he must refund to the other a just proportion of the value, at
that time, of any division fence made by the latter.
§ 841.4 Civ.
Any fence or other structure in the nature of a fence unnecessarily
exceeding 10 feet in height maliciously erected or maintained for the
purpose of annoying the owner or occupant of adjoining property is a
private nuisance. Any owner or occupant of adjoining property injured
either in his comfort or the enjoyment of his estate by such nuisance may
enforce the remedies against its continuance prescribed in Title 3,
Part 3, Division 4 of this code.
§ 3346 Civ.
(a) For wrongful injuries to timber, trees, or underwood upon the
land of another, or removal thereof, the measure of damages is three
times such sum as would compensate for the actual detriment, except
that where the trespass was casual or involuntary, or that the
defendant in any action brought under this section had probable cause
to believe that the land on which the trespass was committed was his
own or the land of the person in whose service or by whose direction
the act was done, the measure of damages shall be twice the sum as
would compensate for the actual detriment, and excepting further that
where the wood was taken by the authority of highway officers for the
purpose of repairing a public highway or bridge upon the land
or adjoining it, in which case judgment shall only be given in a sum
equal to the actual detriment.
(b) The measure of damages to be assessed against a defendant for
any trespass committed while acting in reliance upon a survey
of boundary lines which improperly fixes the location of a boundary
line, shall be the actual detriment incurred if both of the following
conditions exist:
(1) The trespass was committed by a defendant who either himself
procured, or whose principal, lessor, or immediate predecessor in
title procured the survey to be made; and
(2) The survey was made by a person licensed under the laws of this
State to practice land surveying.
(c) Any action for the damages specified by subdivisions (a) and
(b) of this section must be commenced within five years from the date
of the trespass.
§ 3479 Civ.
Anything which is injurious to health, including, but not limited
to, the illegal sale of controlled substances, or is indecent
or offensive to the senses, or an obstruction to the free use
of property, so as to interfere with the comfortable enjoyment of life
or property, or unlawfully obstructs the free passage or use, in the
customary manner, of any navigable lake, or river, bay, stream,
canal, or basin, or any public park, square, street, or highway, is a
nuisance.
§ 3480 Civ.
Section Thirty-four Hundred and Eighty. A public nuisance is
one which affects at the same time an entire community
or neighborhood, or any considerable number of persons, although the
extent of the annoyance or damage inflicted upon individuals may be
unequal.
§ 3481 Civ.
Every nuisance not included in the definition of the last
section is private.
§ 3482 Civ.
Nothing which is done or maintained under the express authority
of a statute can be deemed a nuisance.
§ 3483 Civ.
Every successive owner of property who neglects to abate a
continuing nuisance upon, or in the use of, such property, created by
a former owner, is liable therefor in the same manner as the one who
first created it.
§ 3484 Civ.
The abatement of a nuisance does not prejudice the right of any
person to recover damages for its past existence.
§ 3501 Civ.
The remedies against a private nuisance are:
1. A civil action; or,
2. Abatement.
§ 3502 Civ.
A person injured by a private nuisance may abate it by removing,
or, if necessary, destroying the thing which constitutes the
nuisance, without committing a breach of the peace, or doing
unnecessary injury.
§ 3503 Civ.
Where a private nuisance results from a mere omission of the
wrongdoer, and cannot be abated without entering upon his land,
reasonable notice must be given to him before entering to abate it.
