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Prepared By: Melissa C. Marsh, Los Angeles Real Estate Attorney
Written: August 2007 - Last Updated: April 2009

Everyone has heard the phrase "good fences make good neighbors," and yet this office receives at least a couple of calls a week about repairing a fence, trimming overgrown trees, or resolving a dispute involving damage that either has occured or is about to occur due to landscaping. This article will briefly set forth the law regarding fences and trees. If you need additional assistance, or have a specific question, would be happy to provide experienced legal guidance to help you resolve your specific matter.

Fences.

California Civil Code § 841 requires adjacent landowners equally contribute to maintain walls and fences between them, unless one of the two landowners chooses to let the remaining sides of his property remain unfenced. If that landowner later fences in his property, however, he will then be responsible for payment of his proportional share of the original value of the fence.

So what do you do if your neighbor doesn't want to maintain a fence that is falling down? First try to reason with the neighbor. Good neighbors will agree on splitting the cost of the repair, especially if informed that they have a legal obligation to do so. If that fails send your neighbor a demand letter setting forth his legal obligation and the cost of the fence and attach a copy of an estimate you have acquired. If your neighbor still refuses to pay his proportional share, either contact an attorney or proceed to pay for the fence yourself and consider filing a claim in small claims court.

Trees.

The high winds this past fall caused many tree limbs to fall and in some cases pulled entire trees out of the ground. The fear of a tree falling on your home and the nuisance created by overgrown trees and shrubbery, root systems attacking your water pipes, and fence damage often lead homeowners to seek out legal advice and potential remedies. The remainder of this article sets forth the general rules regarding your neighbors landscaping and trees.

First, Who Owns The Tree.

Pursuant to California Civil Code Section 833, if the trunk of a tree stands wholly on the land of one landowner, that landowner owns the tree regardless of whether its roots, foliage, or branches have grown onto the land of another. However, if the trunk of a tree stands partly on the land of two adjoining landowner, then both landowners own the tree. (Civil Code Section 834).

What To Do or Not To Do About Overgrown Limbs.

Generally, the law considers shrubbery, foliage and branches that encroach onto the land of another a nuisance. The owner of the land encroached upon may abate the nuisance by trimming the overhanging foliage, branches and limbs so long as the owner acts reasonably so as not to seriously injure or kill the tree causing the nuisance. If a landowner cuts foliage that is not encroaching onto his property and does not have the permission of the tree's owner to trim, however, the person cutting the foliage may be liable to the adjoining landowner for up to triple the amount of the damage caused by the wrongful cutting. However, if the damage is accidental or based on a mistaken belief, damages may be limited in the court's discretion to double the value of the wrongful cutting. (Civil Code Section 3346).

In Metropolitan Water District v. Campus Crusade for Christ (2005), the California Court of Appeal ruled that the amount of damages to be awarded to a landowner whose trees were destroyed was the diminution in value of the property caused by the tree trimming, not the replacement cost of the trees. This case, however, is presently pending appeal before the California Supreme Court.

Tree Roots and Damage To My Pipes.

Although adjoining landowners have almost an unfettered right to trim encroaching limbs, branches and foliage, that is not the case with tree roots. If roots encroach under adjacent property, you can sever the roots but only if the roots are in fact causing damage and then only if done reasonably (which may mean by a professional). If the tree roots of an adjoining landowner do in fact cause damage and the encroached upon landowner acts reasonably to sever the roots causing damage, the owner of the encroaching tree is liable for the actual out-of-pocket expenses incurred as a direct result of his tree's encroaching roots.

However, If the adjoining landowner negligently severs tree roots and in turn seriously injures, or kills, a tree the owner of the tree may sue. In Booska v. Patel, 24 Cal. App. 4th 1786 (1994), the plaintiff claimed his neighbor negligently cut the roots of his tree which in turn necessitated the tree's removal. The neighbor claimed he had an "absolute right" to cut the tree roots any way he wanted (in this case 3 feet deep) because they were uprooting his driveway. The Appellate Court disagreed and held that a homeowner's right to manage his own land must be "tempered by his duty to act reasonably."

Landowners should also note that the mere encroachment of tree roots onto your property does not give you the unfettered right to trim. To have the legal right to sever roots, the roots must be causing actual damage.

Who is Liable for Falling Trees?

Sometimes it’s the owner of the tree and sometimes it’s the adjacent landowner. Landowners have a duty to inspect their trees to determine if a tree is healthy or hazardous, and to remove branches and even an entire tree if it poses a hazard. If the tree owner was negligent or careless in that he failed to maintain his tree after warnings or visual signs of problems, then the tree owner is responsible for resulting damage. If the tree was well maintained and a storm or earthquake causes a tree to fall, then the courts will find the damage was from an act of God and the tree owner will not be held responsible, or liable, for the resultant damage.

Spite Fences.

In California, Civil Code Section 841.4 governs what has commonly become known as spite fences. Pursuant to Civil Code Section 841.4, a "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." Pursuant to California law, trees and hedges planted in a row to form a barrier may be deemed a fence. See, Wilson v. Handley, 97 Cal.App.3d 1301 (2002), where the Appellate Court ruled that a row of trees planted in the nature of a fence along the property line does constitute a "structure" under California Civil Code Section 841.4, could be deemed a spite fence and hence illegal.

If an adjoining landowner erects such a fence, the injured neighbor can sue for an injunction, reduction of the height, or removal of the fence.

Leaves, Fallen Fruit and Sap.

Another area of contention is tree debris: leaves, fallen fruit, and sap. Generally, the natural growth of trees includes shade, invading roots, and leaves that blow in the wind and as such while a neighbor may have a limited right as discussed above to "reasonably" trim encroaching branches and foliage, the neighbor does not have the right to insist that the owner of the tree take responsibility for the natural growth and resulting debris of his tree so long as his tree is reasonably maintained.

My Neighbor Cut Down My Tree - Damages.

Chopping down, or killing, your neighbor's tree, even unintentionally, can lead to both criminal and civil damages. Pursuant to California Penal Code sections 384a and 622, it is a criminal offense to harm or remove a tree on someone else's land punishable by a fine of up to $1,000 and up to six months in jail. In addition, California Civil Code section 3346 and California Code of Civil Procedure section 733 provide that the injured tree owner is entitled to a mandatory doubling (with certain exceptions), and at the discretion of the judge treble damages, for wrongful injury to trees or vegetation. In other words, if your neighbor even mistakenly cuts down your trees thinking the trees were on his or her property, the judge is required to award double the actual damages. In addition, the person or company that actually cut down the tree can also be held liable under various common law claims such as: negligence, trespass, conversion, intentional infliction of emotional distress and fraud.

Although the statute of limitations is a long five years, it is best to bring a case as soon as practically possible before evidence disappears and memories fade.

Conclusion.

Despite all the law we return to the phrase "Good fences make good neighbors." Before starting a legal battle that could turn out to be very costly, consider informing your neighbor of the law and making a reasonable accommodation. If two parties each give a little, compromise should successfully resolve the matter. Who are we kidding, if everyone was reasonable, there would be no attorneys and in California there are a lot of them. If reason fails, consider consulting with an attorney regarding your options as soon as practically possible. Typically a letter should be sent, and if that fails, then a lawsuit may need to be filed.

If you have additional questions regarding California law on trees, fences, and boundary lines and would like the assistance of a licensed California real estate attorney, Melissa C. Marsh, please schedule a telephone consultation for as little as $129 by completing Ms. Marsh's Telephone Consultation Request Form and Melissa Marsh will call you back at the time you select. To learn more about how our low cost telephone consultations work, click here. In many cases, Ms. Marsh can help you resolve the matter with either just simple instruction, or a written letter.

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• Boundary Line Disputes - Encroachments - Fences and Trees Oh My!

California real estate lawyer, Melissa C. Marsh, is based in Sherman Oaks and West Hollywood, and assists individuals throughout Los Angeles County, including: West Hollywood, Miracle Mile, Beverly Hills, Century City, Santa Monica, Burbank, North Hollywood, Valley Village, Toluca Lake, Studio City, Sherman Oaks, Van Nuys, Encino, and Woodland Hills.

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