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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 99506
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Neglectful neighbor tree pushing against fence and branches

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Neglectful neighbor tree pushing against fence and branches over my yard. Her yard is overgrown, weeds waist high,breeding place for all kinds of vermin. The tree roots are under my cement foundation and under my shower- I found them when I remodeled. What actions can I take?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. This is commonly known as the "trespassing tree" problem and is a standard in almost every tort (wrongful act) class in law school.

As such, this is a more complex situation of a very basic problem - what to do is one's neighbor crosses the property line into yours with their vegetation?

California's Courts have weighed in on the issue as well in numerous opinions. One that sets the doctrine (arguably) is below:

"The trial court followed the defendant's contention that an action would not lie for the reason that plaintiff had the right personally to cut off the offending roots. The reviewing court, however, pointed out that the evidence showed that the roots were noxious because they ruined the plaintiff's soil and under the authority of section 3479, Civil Code, defining a nuisance, and section 731, Code of Civil Procedure, permitting a party to bring an action to abate a private nuisance, ordered the trial court to grant an injunction and damages. Grandona v. Lovdal, 70 Cal. 161 [11 P. 623], held that a complaint alleging that an encroaching tree constituted a nuisance and was causing damage, stated a cause of action in a private action for the abatement of the encroachment, saying (p. 162): 'Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off or have his action for damages, and an abatement of the nuisance against the owner or occupant of the land on which they grow, but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.' (Wood on Nuisances, sec. 112, citing Commonwealth v. Blaisdell, 107 Mass. 234; Commonwealth v. McDonald, 16 Serg. & R. 390. Bonde v. Bishop, 112 Cal. App. 2d 1 - Cal: Court of Appeal 1952.

So what options does one have?

(a) One has the right to either use self-help and REMOVE any trespass on one's property AND sue for reasonable costs on doing so if a contractor was used;


(b) one may sue for trespass/nuisance and get the Court's prior permission to do so, and then get the cost and permission to remove the offending vegetation in judgment.

(In my answer, vegetation means both roots, branches, leaves, and the like.)

Very often, a letter threatening to sue and/or act with self-help will have the other party capitulate and agree to cut the offending vegetation to avoid litigation/liability. Let me know if you need an example of such a letter.

I hope this helps and clarifies. Best of luck.

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Customer: replied 3 years ago.
Very touchy ground sending threatening letter! Could result in a suit against me. I have tried all other avenues and guess I will have to put up with it. No one wants to take the bull by the horns and resolve this issue-too many cracks to fall through. The answer was as I suspected it would be, and is of little help.

Very touchy ground sending threatening letter! Could result in a suit against me.

Well, not necessarily. What for? To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

By simply sending a letter threatening to sue, arguably no action is being done that can warrant any type of cause of action. In other words, Amy telling Betty "do this or I'll sue" either via writing or verbally is not an civilly actionable matter.

But, believe me where I can understand that the threat of such a matter is enough to deter. It is your decision in the end, of course. My humble and unofficial opinion is that it is you who has the upper hand and them who may be liable. But again, the decision is yours, of course.

If you would like to discuss this matter more, I would be happy to. Really! Simply use REPLY and we can go from there.

You may also have avenues if their behavior is breaking HOA laws. If so, let me know.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.
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