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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 90169
Experience:  Attorney experienced in commercial litigation.
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California Attorney Southern California Neighbor Trimmed our

Resolved Question:

California Attorney
Southern California Neighbor Trimmed our rental home Trees. (Civil Litigator Attorney)

NOTE: if this get too detailed and time consuming I will compensate with tip…)

Rental Home Backyard is surrounded by Tall hedgeTrees on 3 sides. The privacy adds to the value of home especially since there is a large Swim Jacuzzi. The trees had kept the yard private for over 20 years. It was also promised to the tenant the yard would be kept private. The neighbors on all 3 sides are aware of not trimming the trees down. There is a sign on the inside yard and outside facing each of the 3 homes to ensure no one trims the trees. There is one new home owner who built a two story home on one side above the rental home about 10 years ago, and has complaint about the trees blocking a little of their view. We historically trimmed the trees about 1 foot so that the Swim Jacuzzi was kept private but also helped create more view for the Home Above us. We tried to take a reasonable approach. The New homeowner was never happy with just one foot.

We received pictures from the Tenant showing the trees were trimmed extremely low only on one side were the tenant wants a better view. There is now no privacy for the swim Jacuzzi or any part of the yard because the deck and the entire two story home can see into the home now. The trees only needed to be trimmed down one foot in order for the tenant to have a complete view; the trees were trimmed down 8 feet for no reason. There was nothing given to us regarding asking us to trim the top of the trees. The home owner decided on its own to trim the tree down enough so it would take years to grow back; instead of asking us to trim one foot every year.

There were no limbs hanging onto the neighbor’s property.

The City Ordinance state the homeowners have no right to a view (or light or air) and nothing had been granted in writing by a local ordinance or subdivision rule. The exception does not apply since we did not deliberately and maliciously block another’s view with a tree or structure that has no reasonable use to us.

Questions:
1. If a neighbor came over and took a saw to our car they would go to jail. Doesn’t this apply to the trees on our property?
2. Is this “Timber Trespass” since someone crosses onto the property or air space of another, and causes damages to trees?
3. Technically they have destroyed property that is not their’s?
4. Trees have value, monetary and non-monetary. They provide shade, privacy and a sense of emotional well being to the people who tend them and appreciate their beauty and the natural setting they offer…to you agree with this?
5. California laws provide stiff penalties for the unlawful damage of another’s Trees and in most cases you can recover two or even three times the actual loss, and even, in certain circumstances, emotional distress damages?
6. Peoples special relationship to their trees may create for an emotional distress for purely property damage claim?
7. Remedy (1) Cost of hiring an arborist who can evaluate the monetary damages.
8. Remedy (2) Can we ask for the cost of replacing the tall trees which would be extremely expenses?
9. Remedy (2.5) Diminished Property Value?
10. Remedy (2.6) Tenant’s actions to us for having no more privacy?
11. Remedy (2.7) Compensate for Mental Anquish? (We were very emotionally attached to the beauty and the privacy and advertised the rental home as such. It is very frustrating and time consuming to take action)
12. Remedy (2.8) Compensate to ensure the neighbor will not continue to trim our trees?
13. Remedy (3) Can we ask for cost of hiring an attorney?
14. Remedy (4) This is not unintentional or negligent, this was intentional disregard of our trees on our property. What can we do with Intentional act of this neighbor?
15. Do we have a right to file a police report? Should we file a police report? I believe since this was an intentional act we have the right to file a police report in California….Even though the police probably will not take it any further than talking to them and documenting what happened.
16. The neighbor’s tree trimmer has liability also; since tree trimmers know or should have known; not to trim a neighbor’s tree?
17. The tenant did not actually see the Trimming and believes the tree was trimmed from the neighbor’s side. We know they did the trimming since the pictures shows the only section of trees that were trimmed was facing his home. How do we prove he actually did the trimming?
18. How can we demand the name of their tree trimmer?
19. Should we write a letter explaining our position of the tree trimming and our actual damages?
20. Does the letter to the neighbor state we know he trimmed our trees?
21. Does the letter to the neighbor state we request the name of his landscaper or gardner?
Submitted: 10 months ago.
Category: Consumer Protection Law
Expert:  Law Educator, Esq. replied 10 months ago.
Thank you for your numerous questions. I look forward to working with you to provide you the information you are seeking for educational purposes only.

Please let us know, were the trees entirely on your property or was the part he trimmed overhanging his property?
Customer: replied 10 months ago.


Hello....


1ST REPLY QUESTION TO ANSWER


There were no limbs hanging onto the neighbor’s property.” That is correct? YES



As stated in my questions…no one seen them and no approach them yet?


Proof they had trimmed the tree…The same type of Trees surround the entire 3 brick walls of the back yard (Side, Back, Side). The only section of the trees trimmed downs was the one with the view. My Gardner knows not to trim any trees according to our contract and he was already stated he did not. The gates to the backyard are locked and only the tenant and the Gardner have a key. The only way the tree were able to be trimmed was from the neighbor’s yard.
As stated in my summary no one had seen them. This is why I what to approach this carefully. (1) Filing a police report and having an officer talk to them (2) Finding out who neighbor’s Gardner is……I would ask them directly in my first communication with the neighbor…….Should I communicate with the neighbor verbally or by letter and what words should I use to state; I know they trimmed the tree…..Other neighbors has stated the owner of the home is hard to get along with and feels he could do what he wants, not a person to talk reasonably with…REFER TO ORIGINAL QUESTIONS I need help in applying it to the facts stated to you in the original summary and questions.


Tree is 100% on my property….the problem is the view…


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).





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 my summary it states the neighbor trimmed the trees on my side of the yard…..I need help in applying it to the facts stated to you in the original summary and questions.


THANKS....

Expert:  Law Educator, Esq. replied 10 months ago.
Thank you for your response, I just wanted that fact to be clear before I proceeded to answer you.

1) Yes, if the neighbor came onto your property and damaged tress wholly on your property, they are guilty of trespassing and also damage to your property. If they engaged a tree service to do this, then the neighbor is still guilty of the trespass and damage as the service was their agent and they are liable for actions of their agent. When I say guilty, because this is a circumstantial evidence case and nobody actually saw who did it but you did not cause it to be done and it was only on this one neighbor's side who you have been having a dispute with over this, it would not be a criminal action the DA would take, but it certainly is a civil suit you could file for the trespass on your land and damage of your property/trees.

2/3) If he crossed over the boundary of your property, or caused his agent to do so, and damage your property, it is trespass on your property as well as damage to your property.

4) Yes, trees have value themselves and they also add to the value of the property and trimming the trees can lead to a claim not only for the diminished value of the trees but the diminished value of he land itself from loss of privacy.

5) Damage to property typically does not allow you in this case to recover emotional damages, as you said it is rental property. If your court finds that the damage was willful and malicious, then it could lead to double or treble damages.

6) No, it is not likely you will convince the court of emotional distress damages for damage to property in this manner, especially as rental property.

7-14) All of the damages mentioned here are damages you can seek, except the emotional damages and the loss of privacy of the tenants. As stated, on rental property and on property damage claims, emotional damages are really not provided for. As far as the loss of privacy of the tenants, it could be possible the tenant themselves could have a claim against the neighbor, but putting an actual value on this is almost impossible for a court to do. As far as the costs of an expert, diminished values of property, value of the trees and an injunction against the neighbor prohibiting any similar conduct, you can get those. As far as a attorney's fees, these are not provided for in the law for this type of claim I am afraid.

15) You can file a police report for trespass and damage to property. The police will likely not take criminal action, but you can speak to the local DA, who has the final say about any criminal charges and see what they say, especially since you did not really see who did this as mentioned above, they are more likely to refer you to civil court where you do have a valid civil claim.

16) The person who trimmed the tree can also be jointly liable for the damage and trespass, since he was liable to verify ownership and the right your neighbor had to cut the trees.

17) This is a circumstantial case, but the evidence shows that if you did not do this and your other neighbors did not do this then the preponderance of the evidence is that this neighbor you are having a feud with over the trees did this and people win these cases in civil court all the time.

18) Once you file civil suit against the neighbor, in your discovery part of the case you would serve the defendant with a request for interrogatories and ask the name of the person who cut the tree and their information.

19-21) You should not write any letters, you should engage a civil attorney at this point to proceed with this and they would start by making a demand on the neighbor for the damages. Your attorney would then file suit against the neighbor, because in most of these cases the neighbor violators never usually respond because they got their way by cutting the tree and they think they did nothing wrong and a lawsuit is the only way to get their attention and stop them from doing it again.



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This is NOT the practice of law nor is it legal advice to you, it is merely educational information for you to use to seek out a licensed attorney in your state to get actual legal advice from them. Please use sites such as http://www.martindale.com or http://www.lexmundi.com or http://www.hg.org to find a local attorney to get actual legal advice in all matters.
Customer: replied 10 months ago.


Hello....



  1. In my original questions to you I stated the neighbor trimmed the tree from their yard. They did not trespass onto the property. Does this change any of your answers?

  2. This case can be brought to small claim court if I am claiming less than $10.000?

  3. Small claims court requires some correspondence between us to see if we can settle. Therefore I would need to write a letter stating my concern. In the Letter; can I state he did trim the tree, or state the circumstantial evidence show he trimmed the tree?

  4. Can I ask for his Gardner’s name in the letter?

  5. I would have to have someone find their Gardner and write them a letter also?

  6. Would I file a separate claim in small claims court for the Gardner for $10,000?

  7. The neighbor knows he is not supposed to trim our trees. Therefore the damage was willful and malicious. Can we recover for this in small claims court?

  8. There are court cases in California which allow for Emotional damages in tree damage. This is emotionally upsetting and causes stress because it diminished the value of the property and the Tenant is upset because they lost their privacy…..I am responsible. What is the difference of living there Emotional stress or indirect Emotional Street as stated? I would like to insert Emotional stress in the letter if there is a possibility of applying it to this case…

  9. How do I get an immediate injunction against the neighbor prohibiting any similar conduct?

  10. I was told in California if the defendant losses the case they would have to pay attorney fees for the Plaintiff, and if the plaintiff losses the case he might have to pay for the defendant’s Attorney Fees….Is the law different in California for trees?

  11. I assuming the letter written would have to be accurate according to law since it will be used in court against me?

  12. In small claims court there are no depositions; how will I find out who the Gardner is? Can I request the Judge in small claims court to ask for the Gardner’s name?

  13. The trees that were trimmed would probably grow back in 2 years. To replace the trees would be around $7,000. Do you have any guess in how the Judge would compensate for the direct damages to the Trees.

  14. Let say that one in a million chance the Neighbor did not trim the trees. Does the neighbor have any recourse against me for just writing a letter to him? For taking him to Small claims court? For taking him to Civil court with an Attorney…..(If I lost I would probably have to pay for his Attorney Fees)


Thanks...

Expert:  Law Educator, Esq. replied 10 months ago.
Thank you for your response.

They had to trespass over your boundary if the trees were wholly in your yard as you said. They did not have to physically be on your ground, since your property line extends upward from the ground. Thus to get at your trees wholly on your land, they had to trespass over the plane of your boundary.

Yes, you can bring it to small claims if the total damages are less than $10,000, but small claims cannot issue an injunction to stop further behavior and you may want to use an attorney and go to superior court so you can get an injunction as part of your suit.

You also cannot conduct discovery in small claims, so if you send him a letter and he refuses to disclose the name of the party who cut the trees for him you would be stuck. Also, if for some reason you lose in small claims, as plaintiff you cannot appeal.

You can try for emotional distress, but as you are not living there I really do not see it as possible I am sorry to say.

The award of attorney's fees is not for every case in CA, it is only where allowed by law and it is not generally awarded in property damage claims.

As I said, the injunction has to be filed for in superior court, which is why you do best seeking to take the entire case to superior court.

The court would defer to the tree expert about damages.

No the neighbor has no recourse for you writing a letter to him. Furthermore, the letter is your offer to settle and your demand for settlement, so it cannot be introduced in court proceedings later and in your letter you would specifically state in the beginning that it is a notice of demand and offer to settle and not to be used for any other purpose in accordance with the rules of evidence.
Customer: replied 10 months ago.

 


Thank You…Excellent Answers….there were two questions that were skipped over.



  1. The trees that were trimmed would probably grow back in 2 years. To replace the trees would be around $7,000. Do you have any guess in how the Judge would compensate for the direct damages to the Trees?

  2. If I decided to go to small claims court…would I file a separate claim in small claims court for the Gardner or combined them?


 


I will close this case and write a letter in the next couple of day…and maybe open a new case with you regarding checking the wording of the letter,


 


Excellent Service……I will leave you a tip of $20


 


Thanks Again


John

Expert:  Law Educator, Esq. replied 10 months ago.
Thank you for your reply.

Honestly, I nor any attorney could determine how the court will calculate damages, this depends on the expert witness. It would not be full replacement value of the trees, it would be based on the willful trespass and damage to your property. I would not be able to tell you more, nor would a local attorney until they review the facts and hear from the evidence.

If you go to small claims, it would be one suit against both parties.

Thank you very much. It has been a pleasure working with you.

Law Educator, Esq., Lawyer
Satisfied Customers: 90169
Experience: Attorney experienced in commercial litigation.
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