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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 38570
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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What does California law say in reguards to neighbor tree ...

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What does California law say in reguards to neighbor tree disputes? I''m particularly interested in the responsibilties and liabilities of a tree owner. Also are such disputes (when brought to suit) useually refured to arbitration?

Any action for less than $25,000 damages will be sent to non-binding alternative dispute resolution.

I need more info. What exactly is the dispute?

Customer: replied 8 years ago.
My neighbor, of 5 years, is threatening to sue me in an attempt to get me to cut down a tree planted about 25 years ago and kill it's roots. Removing this tree would adversely affect the appearance of my home from the street. This tree is 5 feet from the property line and on my property. He claims that roots from my tree are causing cracks in his RV driveway one side of which is about 10 to 12 feet from the tree. I can see no cracks there although there is a 5 - 6 inch diameter root visible going under the driveway. This root appears to be dead as it was cut at the property line a couple of years ago. He also believes cracks in his garage floor (these appear to be new hairline cracks) approximately 30 to 40 feet from the base of the tree are evidence or root damage. This tree has an untrimmed drip line diameter of about 25 feet and the branches (due to trimming and pruning) do not threaten his property. I have offered to remove the tree and try to kill its roots if he can convince me that my tree is causing the cracks (which are perpendicular to a line drawn from the tree trunk to crack sites). It appears Nothing sort of tree removal and killing the roots will satisfy him.

Under the common law of torts, your duty is to keep the tree and its roots off of your neighbors land, and to use due care to not impose an unreasonable risk of harm to your neighbor's property.

For a trespass action, your neighbor will be required to show that the tree roots are actually physically entering his land, and that the trespass is the cause of damage to his driveway and garage.

Here, it will be easy to show that the root has entered his land. And, to the extent that the root causes damage, such as causing the ground to be unlevel, then you would be strictly liable for the damage.

However, for you to be liable for the damage to the paving and garage pad, your neighbor will have to show that you were negligent: that you owed a duty of due care to the neighbor, that you breached your duty, that the breach actually caused the damage to your neighbor's property, and that the neighbor was damaged as a consequence.

Here, your neighbor must show, among other things, that the root is a "substantial factor" in causing the damage to his driveway and garage pad. This may require him to hire an expert to testify as to the cause of damage, which will cost him at least $2,000 in expert witness fees that he cannot recover from you at judgment. When he speaks with an attorney about his case, he may not want to pour money into a risky legal action. Furthermore, your neighbor cannot collect attorney fees from you, so unless an attorney thinks that this case will be easily won, the attorney may not be interested -- which gets your neighbor back to fronting the money for an expert to report on the cause of damage.

I don't want you to think that you're "out of the woods" here (pun intended). An attorney would probably be willing to send a nasty note and your neighbor may be willing to file a claim just to get you to have to retain a lawyer to defend, which means that you will also have attorney fees you cannot recover. At which point you will have to choose between settlement and attorney fees -- neither of which will be free.

I think you may want to offer to remove the root from his yard, in exchange for his releasing you from further liability concerning any existing tree damage. He will probably refuse, but one never knows.

socrateaser and 2 other Real Estate Law Specialists are ready to help you
Customer: replied 8 years ago.
Thank you for your detailed answer. I have one other question concerning your response. Is this information consistent with CALIFORNIA LAW, or its application, or with US LAW in general?

California law is frequently the basis of the tort law for the other U.S. jurisdictions, because (1) so much more litigation occurs in CA, and (2) because the most famous law professor on the subject of torts was from California, and his texts (Prosser) are the basis of most tort law classes at every major law school.

I should add "nuisance" as a potential tort, to my prior answer. If you want to investigate a little farther, review the California Civil Jury Instructions for trespass, nuisance and negligence. The elements stated are what the plaintiff needs to prove to win his case.

http://www.courtinfo.ca.gov/jury/civiljuryinstructions/documents/caci.pdf

 

Note: I said $25,000, in a prior post. It's actually any action where the amount in controversy is less than $50,000 shall be submitted to judicial arbitration (CCP 1141.11)
Customer: replied 8 years ago.
Once again, thank you for your timely responses, they have been great. I must now consider all that you have shared and decide just how much I value my tree and the relationship with my neighbor. Is it worth it to me considering all the time, money and strain of fighting this essue further would probably entail.

It really burns me to think that if I decide to do his biding with only his threat of a suit (his not having to prove or compermise on anything) gets him what he wants.

Thank you again for your time and information. If you think of anything further please feel free to phone or email me direct.

Ralph Shultz

(edited for privacy)
You're welcome!Cool